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taken for public use without just compensation." Now, suppose the government in tiine of peace takes property, knowing it to belong to an individual, and refuses payment therefor, denying that it will ever make restitution, and denying any compensation. Is that a wrong as grievous as taking by the taxing power? In time of peace, the officers take by force his block of ground for an United States court building. And the officers override all protests of the owner. The owner cannot have the writ of injunction. He cannot interfere for fear of an indictment. He allows it because he can do nothing else; but he makes protest. The officers would be doing an illegal act; but is it a tort? Or is there not an implied contract to make restitution or payment? On a similar state of facts the Supreme Court held there was an implied contract that the government would make payment. United States v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. Ed. 539. In that case there were two questions presented for decision. The one was whether the case was on contract, or one in tort, and it was held to be an implied contract to pay the party wronged. The other question was as to whether it was a taking of property within the meaning of the Constitution. There was no claim that the government had actually and physically taken any of plaintiff's property. But the government, exercising its functions by its officers, had damaged plaintiff's property by lessening its value and impairing its use. And this was held to be a taking. I can add nothing by discussing that case. But the logic of Justice Brewer, and the cases cited, make it, in my opinion, decisive that in the case at bar we have a case of an implied contract, and not one in tort. In that case, the government did not claim title, either legal or equitable, to the property so "taken. But it claimed the right to back water over the land, and destroy it, and thereby take it. In the case at bar, the government insisted on the right to the tax, and thereby to lessen the estate, and to take the tax for public use. In the case cited, the owner could not by injunction proceedings, nor by proceedings to abate the nuisance, have the property restored. At all events, such proceedings would be doubtful. In the case at bar, the Armours could not personally interfere without being subject to indictment, and they were expressly denied the writs of injunction. Rev. St. § 3224 [U. S. Comp. St. 1901, p. 2088). In neither the case cited, nor in the one at bar, was a wrong intended by government officers. In the case cited, the officer in charge insisted upon his right to take, because of what was believed to be by him a proper interpretation of the Constitution. But he adopted a mistaken interpretation. In the case at bar, we have precisely the same situation, except it was a statute for interpretation, and a like mistaken conclusion was adopted. In the case cited, the Constitution required just compensation to be made. That should have been arrived at in advance of taking the property, either by agreement, or by proceedings in a court, as was done in Kohl v. United States, 91 U. S. 367, 23 L. Ed. 149. In the case at bar, the methods are fixed by statute-first a review by administrative officers, and then by the courts. But let it be kept in mind, with the thought all the time, that collectors might wrongly or mistakenly collect money, and the courts would require a refund. Such is the statute under which the collec

tion was made and revised. Rev. St. $$ 321, 3182, 3183, 3220, 3226, 3227 [U. S. Comp. St. 1901, pp. 186, 2071, 2072, 2086, 2088, 2089). It is true that in the case cited the allegation was made that the acts of the government were rightly done, while in the case at bar the allegations are that the claim of the government was wholly illegal, and the assessment and levy were void, and the collection unauthorized. But in neither case had the government the right in a sense to do what was done, and the two cases seem to be alike. The allegations in the petition demurred to are but legal conclusions, and the facts pleaded control. In the case cited, there was a physical invasion of plaintiff's land without his consent, a strong argument that there was a tort by trespass. But in the case at bar, the collector in effect said this estate was taxable. The executor said it was not. The collector said he would collect the tax. The executor said, “I am helpless, and therefore shall expect to sue and recover it back," and preliminary to that filed a protest. And under those facts the collector took the money. I am of the opinion that here is a stronger case than the Lynah Case, and that it is a case of a suit on an implied contract. It being such a case, there is not a misjoinder of plaintiffs, nor of causes of action.

The remaining question is as to whether, on the facts of the case, the defendant herein, the present collector, is properly made a defendant. On this question the entire argument, both orally and in writing, of defendant's counsel, has been on the assumption that this is an action in tort. And I agree with them that if that be so, then this case is at an end. But having already ruled that this is an action on an implied contract, I shall pass on the question now under consideration, with the holding that it is a case of contract, not a tort. There was an implied agreenient to refund, when determined that the tax was not owing. The collection by the collector was an act within and pertaining to his official duties. Therefore the responsibility results from the office. Such being the case, the collector then in office was not personally liable, but, had he survived and remained in office, would have been adjudged liable as an officer, with a certificate, as per statute, withholding execution. And if this be so, then why is not the successor in office likewise, neither more nor less, liable to a judgment or order? The tax should not have been exacted. But in taking it, the collector was not himself liable. Thus in Jones v. LeTombe, 3 Dall. 384, 1 L. Ed. 617, the action was on a bill of exchange given by a consul of France. Held not personally liable. In Hodgson v. Dexter, 1 Cranch, 345, 2 L. Ed. 130, the Secretary of War was sought to be held personally liable on a lease taken for property used by the government. It was held that there was no personal liability, chief Justice Marshall saying:

“The court is unanimously and clearly of the opinion that this contract was entered into entirely on behalf of government, by a person properly authorized to make it, and that its obligation is on the government only."

In Garland v. Davis, 4 How. 131, 148, 11 L. Ed. 907, a like holding was made in an action against the clerk of the House of Representatives. And see Harding v. Woodcock, 137 U. S. 43, 11 Sup. Ct. 6, 31 L. Ed. 580.

The collector acted as was believed his official duties required. Personally he was not in the wrong. Under section 3224 of the Revised

Statutes he could not be enjoined. But a suit to recover the money back when illegally collected is a part of the system of corrective justice, as was held in Snyder v. Marks, 109 U. S. 189, 3 Sup. Ct. 157, 27 L. Ed. 901, and Auffmordt v. Hedden, 137 U. S. 310, 11 Sup. Ct. 103, 34 L. Ed. 674.

By section 29 of the statute under which the money was collected (June 13, 1898), the executor was required to sign a statement to tire collector, under forms prescribed, and then pay to the collector the tax. But the Commissioner made or had charge of the so-called “assessment,” as appears from section 30 of such statutes. Also, see sections 3182, 3183, Rev. St. [U. S. Comp. St. 1901, pp. 2071, 2072), all of which are in force as to the statute in question, and it is the Commissioner who makes the assessment so far as one is made, and the collector, as the title of his office implies, only collects. In the event of the death of a collector, all lists shall be transferred to his successor; and by the statute of February 8, 1899, an action against said officer shall not abate, but his successor shall be substituted as defendant (Act Feb. 8, 1899, c. 121, 30 Stat. 822 [U. S. Comp. St. 1901, p. 697]). Taxes collected must be duly paid into the treasury.

By Rev. St. § 3220, it is made the duty of the Commissioner to pay any judgment rendered against a collector for internal revenue taxes. And by section 30 of the act of June 13, 1898, all provisions as to other taxes are made applicable to that statute. So that we have a case, where the collector has no personal interest, has no discretion but to act, must remit all moneys collected to the treasury, and for excessive collections made under direction of the Commissioner shall have judgments rendered therefor paid off by the Commissioner out of public funds. U. S. v. Frerichs, 12+ U. S. 315, 8 Sup. Ct. 514, 31 L. Ed. 470. And to all purposes it is an action against the government. De Saussure v. Gaillard, 127 U. S. 216, 8 Sup. Ct. 1053, 32 L. Ed. 125; Arnson v. Murphy, 115 U. S. 579, 6 Sup. Ct. 185, 29 L. Ed. 191; Cheatham v. U. S., 92 U. S. 85, 88, 23 L. Ed. 561. In this last case Justice Miller covers the entire situation both as to the collection of the taxes, and then the corrective justice in allowing a suit against a collector of customs and internal revenue when the administrative officers fail to do justice to the individual from whom an illegal tax has been exacted,

So that I conclude:

The collector personally was not in the wrong, and not a trespasser, and that he could not do otherwise than collect.

The money thus collected was paid under protest, and thereby was an implied promise to refund it, as it was not owing.

The collector was acting for the government, and it is the duty of his office to refund, and it is the duty of the Commissioner to furnish the money with which to refund.

The money was collected as a whole and was not divisible, and collected as one act, and with one promise to repay.

Counsel for defendant first isolate part of a sentence of Justice Clifford in his opinion in Andreæ v. Redfield, 98 U. S. 225, 25 L. Ed. 158, and base an argument thereon. It is needless to say that an opinion on the question of waiver of the statute of limitations is not an authority on any question presented in this case.

The demurrer will be overruled.

DES MOINES CITY RY. CO. V. CITY OF DES MOINES.

(Circuit Court, s. D. Iowa, Central Division. February 20, 1907.)

1. COURTS-JURISDICTION OF FEDERAL COURTS--FEDERAL QUESTION.

A suit by a street railway company claiming in good faith to have a contract with a city giving it a perpetual right to operate its cars in the streets of the city to enjoin the city from impairing such contract by enforcing an enactment of its council treating the company as a trespasser and requiring the removal of its tracks from the streets is a suit arising under the Constitution of the United States of which a federal court has jurisdiction regardless of the citizenship of the parties.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $8 820-824.

Jurisdiction of federal courts in actions involving federal question, see

notes to 11 C. C. A. 308, 35 C. C. A. 7.] 2. CONSTITUTIONAL LAW-IMPAIRMENT OF CONTRACTS-LAW OF STATE.

A resolution of a city council directing the removal from the streets of the tracks of a street railway company is a law of the state, within the meaning of the contract clause of the federal Constitution, where under the state law the resolution is as effective for the intended purpose as an

ordinance would be. 3. COURTS JURISDICTION OF FEDERAL COURT-FEDERAL QUESTION.

That a state Constitution contains a provision prohibiting the passage of any law impairing the obligation of contracts does not deprive a litigant of the right to invoke the similar provision of the federal Constitution in a suit which involves the question of its violation.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 13, Courts, $ 821.] 4. STREET RAILROADS-GRANT OF FRANCHISE-CONSTRUCTION OF ORDINANCE.

In 1866 the city of Des Moines passed an ordinance granting to a street railway company and its successors and assigns the right to lay tracks in any of the streets of the city, and to "operate thereon cars in the manner and for the time and upon the conditions hereinafter mentioned and prescribed.” A subsequent section provided that the right granted “shall be exclusive for the term of 30 years,” and that the city should not, "until after the expiration of said term, grant to or confer upon any person or corporation any privileges which will impair or destroy the rights and privileges herein granted to said company.” At that time there was no statute of the state of Iowa specifically conferring on cities the power to grant franchises to street railroad companies, but such grants were afterward legalized by the Legislature, and there is no statute limiting the term for which such grants may be made. At all times until the year 1905 the city in many ways recognized the franchise as in force, and after the expiration of the 30-year term required complainant, which had succeeded to the property and franchise of the original company, to pave streets, and construct new lines at large expense. In 1905 the city coun: cil passed a resolution treating complainant as a trespasser, and ordering all of its 70 miles of tracks removed from the streets. Held, that the ordinance granted a franchise in perpetuity, its exclusive character only being terminated at the end of the 30 years, and created a contract which the city could not impair; that complainant was entitled to an injunction restraining the enforcement of the resolution on that ground, and also on the further ground that the city was estopped by its acts from insisting upon a different construction of the contract.

In Equity.
N. T. Guernsey, W. L. Read, and George H. Carr, for complainant.
W. H. Bremner, Howard J. Clark, and Wm. H. Baily, for defendant.

MCPHERSON, District Judge. This is a case by a bill in equity without a diversity of citizenship. The jurisdiction of the court is challenged, the defendant city insisting that there is no federal question; while the plaintiff contends that its property is sought to be taken without due process of law, and that its contract with the city, as to the duration of its franchise, is sought to be impaired, and will be impaired if the city is not restrained. Jurisdiction is most generally acquired, when acquired at all, in cases between citizens or corporations of different states; but in this case, as both parties are Iowa corporations, jurisdiction cannot thus be acquired. If this court takes jurisdiction, it is by reason of article 3, § 2, of the United States Constitution and the statutes of Congress enacted thereunder. The Constitution in part recites, with reference to the United States courts:

“The judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made or which shall be made under their authority."

The enactments of Congress conferring jurisdiction are pursuant to the constitutional provision. If both the state and federal courts would have jurisdiction the plaintiff has the election of bringing it in either, and such election is not a subject of criticism. It is a right. And the fact that the other party prefers to have the litigation in a court of another jurisdiction is not a reflection on any court, nor a subject of criticism. No judge will seek to acquire jurisdiction. And no judge with the slightest courage will seek to avoid the responsibilities, to the end that he may lighten his work.

The only possible practical question as to the disputes between these parties as to what court shall enter a decree is as to what court on appeal the case may be carried. If the city is right in its contention that the state district court only can take jurisdiction, then on appeal the Iowa Supreme Court will decide all questions of fact and all questions of law, except questions pertaining to the United States Constitution, which alone will finally be decided by the United States Supreme Court. But if the street railway company is correct in its contention that this court has jurisdiction, then the case can be taken direct to the United States Supreme Court, and that court will determine all questions of fact and all questions of law, including all constitutional questions. But with natters of appeal this court has nothing to do, and they are only referred to because of the arguments. But it is not a question of labor nor responsibility, nor shirking of either, but is a question of jurisdiction, and that depends upon the question of whether there is a “federal question” in the case.

In 1866 Des Moines was a city of about 6,000 people. It had no street cars, and quite likely no other city of the state had. Up to that time there was no statute on the subject. The only statute that could he referred to as at all germane to the subject was section 1064 of the Revision of 1860, which in the most general terms gave city councils

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