[193]

Sedg. Stat. and Const. L. 31 (a); Mercantile Bank v. N. Y. 121 U. S. 138 (30:895); Hepburn v. Carlisle School Directors, 90 U. S. 23 Wall. 480 (23: 112.)

be a different one from what that of the court | lar form or manner, it excludes every other
would be in the litigation. The writ of man-mode.
damus is a remedy to compel the performance
of a duty required by law, where the party
seeking relief has no other legal remedy and
the duty sought to be enforced is clear and in-
disputable. Knox County v. Aspinwall, 65 U.
S. 24 How. 377, 383 [16: 735, 738]. Both requi-
sites must concur in every case.

It is urged that the answer to the petition, so far as it refers to the conflicting claims of White and Porter as a ground for not recognizing the claim of White, is insufficient as a pleading. But no such ground is taken in the demurrer to the answer; and, independently of this, we think that the answer was sufficient.

We express no opinion as to the validity of the second ground of defense set up in the answer, -that the Secretary of State is not invested with authority over the moneys in question independently of the President, and that it is the opinion of the President that the public interests forbid the making of payments to White, in the condition of things set forth in the

MERCANTILE NATIONAL BANK OF

CLEVELAND, OHIO.

(Sec S. C. Reporter's ed. 193-200J

Taxation of bank shares-when illegal-deduc-
tion of debts.

1. An increase in the assessment of bank shares
of 5 per centum, made by the State Board of Equali-
zation for incorporated Banks, of Obio,-held to be
such a discrimination as is forbidden by section 5219
of the Revised Statutes of the United States, where
the tax on other moneyed capital and personal
property was made upon an estimate of 60 per cent
of its cash value, and the estimate of such stock
was also made at the same per cent, but was in-

creased by such state board to 65 per cent.

2. Such state board has only power to diminish or increase the assessed value of the shares of stock so as to make them equal among themselves, and

has no power of equalization of the same with other

personal property.

3. In order to entitle shareholders to a deduction
of their indebtedness from the assessed value of
the shares of their bank stock, it is not necessary
for them to make a demand for such indebtedness

before the completion of the assessment, where the
laws of the State make no provision for such de-

duction.

The necessary result of the action of the State Board of Equalization was not a discrimination prohibited by the Act of Congress.

Cummings v. Merchants Nat. Bank, 101 U. S. 153 (25: 903); State R. R. Tax Cases, 92 U. S. 575 (23: 663); Pelton v. Commercial Nat. Bank, 101 U. S. 143 (25:901); Stanley v. ALbany County, 121 U. S. 535 (30:1000); Mercantile Bank v. N. Y. supra; Williams v. Albany County, 122 U. S. 154 (30: 1088); Davenport Nat. Bank v. Davenport Board of Equalization, 123 U. S. 83 (31: 94); German Nat. Bank v. Kimball, 103 U. S. 732 (26: 469.)

The statute does not permit the deduction of indebtedness from moneyed capital.

Evansville Bank v. Britton, 105 U. S. 322 (26: 1053); Exchange Bank v. Hines, 3 Ohio St. 1. To entitle a shareholder to a deduction of his individual indebtedness from the value of his stock, he must make the necessary affidavit and demand.

Williams v. Weaver, 100 U. S. 547 (25: 708); Hills v. Exchange Bank, 105 U. S. 319 (26: 1052); Albany County v. Stanley, Id. 305 (26: 1044); Stanley v. Albany County, 121 U. S. 535 (30: 1000.)

The county auditor had no authority to correct the tax.

State v. Montgomery County, 31 Ohio St. 271, Ins. Co. v. Capellar, 38 Ohio St. 560; Butler v. Hamilton County, 39 Ohio St. 168.

Messrs. W. W. Boynton and John C. Hale, for appellee:

The rate of taxation involves both the valuation placed on the property and the percentage of assessment on that valuation.

People v. Weaver, 100 U. S. 539 (25: 705); Pelton v. Commercial Nat. Bank, 101 U. S. 143 (25: 901); Stanley v. Albany County, 121 U. S. 542 (30: 1001); Boyer v. Boyer, 113 U. S. 694 (28. 1090.)

than other moneyed capital in the city and The shares of the appellees are valued higher county where the Bank is located.

Mercantile Bank v. N. Y 121 U. S. 138-155 (30: 895-901); First Nat. Bank v. Lucas County Treas. 25 Fed. Rep. 759; Peiton v. Commercial Nat. Bank, 101 U S. 143 (25: 901); Cummings v. Merchants Nat. Bank, Id. 155 (25: 904).

The taxation, without permitting the shareholder to deduct the amount of his bona fide indebtedness, is a discrimination forbidden by the Act of Congress.

Evansville Bank v. Britton, 105 U. S. 322 (26: 1053); People v. Weaver, 100 U. S. 539

APPEAL from a decree of the Circuit Court (25: 705); Cummings v. Merchants Nat. Bank.

of the United States for the Northern Dis-
trict of Ohio, enjoining the collection of the
part of a tax on bank shares above the as-
sessed valuation of 60 per cent, and granting
relief to shareholders of a deduction on account
of their indebtedness. Affirmed.

The facts are stated in the opinion.
Messrs. James Lawrence, Clarence
Brown, David K. Watson, Atty-Gen. of Ohio,
and Fred'k L. Geddes, for appellant:

101 U. S. 153 (25: 903); Albany County v. Stan ley, 105 U. S. 305 (26: 1044); Mercantile Bank v. N. Y. 121 U. S. 152-157 (30: 900-902); Stanley v. Albany County, Id. 543 (30: 1001.)

The restriction in section 5209 is in harmony with Ohio cases.

Exchange Bank v. Hines, 3 Ohio St. 15; Pel ton v. Commercial Nat. Bank, supra.

Mr. Justice Miller delivered the opinion of

If a thing is limited to be done in a particu- the court:

[194]

This is an appeal from the Circuit Court of the United States for the Northern District of Ohio.

The Mercantile National Bank of Cleveland, Ohio, brought this suit against Horatio N. Whitbeck, the appellant here, as Treasurer of Cuyahoga County, in that State, in which the City of Cleveland is located, to restrain him from the collection of certain taxes levied upon the shares of the capital stock of that Bank. The substantial allegations of the bill are that, upon the assessment of the value of the shares of its capital stock for purposes of taxation, they were estimated at sixty-five cents on the dollar of their real value in money; while all other personal property in the City of Cleveland and County of Cuyahoga, including the moneyed capital in the hands of individual citizens of said city and county, was estimated at only sixty cents upon the same basis.

This occurred in the following manner: The auditor of Cuyahoga County, in accordance with the rules and practice adopted for the valuation of other moneyed capital of individuals, fixed the taxable value of these bank shares at 60 per centum of their true value in money, and certified and transmitted the same to the annual State Board of Equalization for incorporated banks. This board made an order increasing the valuation to 65 per centum, which latter value was certified back to the auditor and by him placed upon the tax duplicate for the year 1885. This was delivered to the defendant, the Treasurer of said County, for the collection of the taxes thereon.

Another point made by the bill was, that while the Statutes of Ohio permit the taxpayer owning moneyed capital subject to taxation to make a deduction, from the amount assessed [195] against him on account of credits, of the amount of his bona fide indebtedness, no such provision is made in regard to the indebtedness of any holder of bank stock. The bill sets up as affected by this proposition the names of certain shareholders of the plaintiff bank, who claim that they should be allowed this deduction for their indebtedness upon the taxable value of their bank shares.

in all cases except with regard to bank stocks,
and that in regard to these the valuation is fixed
upon the same basis at 65 per centum. It is
probably the fact, as alleged by the counsel for
the treasurer, that the state board, having these
stocks under consideration, may have made a
truer estimate, and may have equalized their
assessed value over the entire State; but this
equalization, from the very nature of the func-
tions and powers of that body, merely has ref-
erence to bank shares as among themselves;
that is to say, its purpose is to make the capital
stock of all incorporated banks in the State
equal in valuation for the purposes of taxation,
so far as relates to their actual cash value.
This board has no other power than this; it
has no capacity to equalize the valuation of
bank shares for taxation as compared with
other moneyed capital in the State. Such capi-
tal may, therefore, have a valuation very much
below its real value, and even very much
below the conventional rate fixed upon bank
stocks by the action of this body, and that re-
sult almost necessarily follows in this case from
the nature of the powers which have been con-
ferred upon it. While it has the power, and it
is made its duty, to take the valuation of bank
shares, as reported to it by the auditor of Cuya-
hoga County, and make a comparison between
it and the reports of the same character made
to it by the eighty other counties in the State, it
receives no such report in regard to any other
moneyed capital. There is no means furnished
it for the purpose of making a comparison of
the proportion which the assessment sustains to
the true value, as between the banks and the
other moneyed capital of the State, in the differ-
ent counties thereof. While it is not an absolute
necessity that this method should result in a
discrimination against the national banks, it is
one of the probabilities, as has happened in this
case, that it may produce such a result which
shall be unfavorable to those institutions.

Section 2804 of the Revised Statutes of Ohio enacts that an annual county board for the equalization of the real and personal property, moneys, and credits in each county, exclusive of cities of the first and second class, shall be The case was tried before the circuit and dis- composed of the county commissioners and trict judges, sitting together, and a certificate county auditor, who shall meet at the office of of a division of opinion was made, accom- the latter in each county on the Wednesday panied by a statement of the facts on which after the third Monday in May, annually. It the difference arose. A decree was entered in is provided that this board shall have power to accordance with the opinion of the circuit hear complaints and to equalize the valuation judge, enjoining the collection of the amount of all real and personal property, moneys, and represented by the difference between 60 and 65 credits within the county. It is under this per centum of the actual value of the stock, statute that the assessment was made which the and granting the relief asked for by the share-auditor certified to the State Board of Equali holders who claimed a deduction on account of their indebtedness, except as to three of them. As regards the allegation of a discrimination against the stockholders on account of the shares held by them, caused by the increase in the assessment of 5 per centum made by the State Board of Equalization, the matter is not altogether free from difficulty; but we are of opinion that there is such a discrimination as is forbidden by section 5219 of the Revised Statutes of the United States. It is certainly true that the tax upon personal prop erty, including the moneyed capital of private citizeus, in Cuyahoga County is made upon an estimate of sixty per centum of its cash value

zation. No complaint has been made that this
assessment upon the capital shares of the plaint-
iff bank was in any wise unequal as regards
the assessment upon other moneyed capital.

The organization and method of proceeding
of the State Board of Equalization for incor-
porated banks is provided for in the following
sections of the Revised Statutes of Ohio, 1880:

"Sec. 2808. (As re-enacted March 9, 1883; 80 Ohio Laws, 55.) The governor, auditor of State, and attorney general shall constitute a board for the equalization of the shares of incorporated banks, and for this purpose they shall icet on the third Tuesday of June, annually, at the office of the auditor of State, and examine the

[196]

[197]

[338]

and Parmalee, the court finds that the allega-
tions of the bill are true, but that as to them
they are untrue. It therefore granted relief
by the injunction as to all of them except these
three, as to which it was denied. It is to be
observed, however, that the Bank takes no ap-
peal from the part of the decree denying relief
to these three shareholders.

These principles require the affirmance of
the decree of the circuit court; and while there
will be found in them a sufficient answer to
the questions certified by the judges of that
court, we do not think it necessary to make a
more specific answer to each of them.
The decree is affirmed.

UNITED STATES, Appt.,

v.

CHARLES W. BEEBE ET AL.

(See S. C. Reporter's ed. 338-348.)

The bill sets out at considerable length and with much regard to details a great array of alleged facts connected with the issue of said patents, the former appropriation of the land, and the alleged fraudulent acts and practices of said Beebe with reference to said land. In substance they are as follows: That said lands were formerly a part of the Quapaw Indian reservation, but were ceded to the United States by the Treaty of August 24, 1818, and thereby became part of the public domain; that afterwards, to wit, in 1819 and 1820, they, with other lands not involved in this controversy, were located with what is known as "New Madrid Certificates" issued by the recorder of land titles at St. Louis in November, 1815, under and in accordance with the provisions of the Act of Congress approved February 17, 1815, entitled "An Act for the Relief of the Inhabitants of the Late County of New Madrid, in the Missouri Territory, Who Suffered by Earthquakes," 3 Stat. at L. 211; that by virtue of said locations all of said lands were surveyed, and the surveys were returned to the recorder on the

Power of attorney-general-defenses of Statute 17th of October, 1820, whereby said lands be

of Limitations and laches.

1. The attorney-general may institute a suit in the name of the United States to set aside a patent obtained from it by fraud or mistake.

2. In cases where the Government, although a nominal plaintiff, has no real interest in the litigation, but has allowed its name to be used therein for the sole benefit of a private person, the defenses of laches and the Statute of Limitation are available, the same as in suits between private in

dividuals.

[No. 180.]

Argued Feb. 10, 13, 1888. Decided April 30, 1888.

APPEAL from a decree of the Circuit Court

of the United States for the Eastern District of Arkansas, sustaining a demurrer and dismissing an action to set aside patents for land. Affirmed.

Statement by Mr. Justice Lamar:

came legally appropriated by the holders and
owners of said certificates, and thus severed
from the mass of the public domain; that the
equitable title to said lands thus became vested
in the locators of said certificates and their as-
signs, and was afterwards, by proper assign-
ments and conveyances, transferred to and be-
came vested in one W. M. O'Hara, who subse-
quently conveyed the lands in undivided moi-
eties to Nathaniel Philbrook and Chester Ash-
ley; that in 1824 said Philbrook died intestate,
seised and possessed of an undivided half inter-
est in said lands held under the title aforesaid,

and the same descended to his father, Eliphalet

Philbrook, a citizen of New Hampshire and
his sole heir at law, who, dying in 1828, by
last will and testament devised all his interest
in and to said lands to Thomas H. Ellison and
six of his other children and grandchildren; that
said devisees and heirs of such as are deceased
have, by proper deeds, conveyed said lands to
George V Dietrich, Jabez C. Hurst, citizens of
Galesburg, Illinois, and John F. Calder, a citi-
zen of Troy, New York, in trust to apply for
and obtain patents thereto from the United
States; that said trustees applied to the United
States recorder of land titles at St. Louis, Mis-
souri, for patent certificates in support of said
original "New Madrid" locations, and, on the
10th day of September, 1875, that officer issued
such certificates in the names of the original

This is a suit in equity brought by the attorney-general on behalf of the United States to set aside and cancel certain patents issued in favor of Roswell Beebe, in 1838 and 1839, for about 480 acres of land upon which the present City of Little Rock, Arkansas, is partly built. Roswell Beebe having died many years ago, this suit is prosecuted against his heirs and legal representatives. It was brought in the United States Circuit Court for the Eastern District of Arkansas, the bill having been filed on the 31st of January, 1883. The ground up-locators and their legal representatives for on which it is asked that said patents may be said lands, as he was authorized to do by the said set aside and canceled is, that at the date of Act of February 17, 1815; that afterwards said their issue, and for a long time prior thereto, trustees made application for patents for said the United States did not own the land em- lands to the proper United States authorities, braced in them, but that, on the contrary, said but that such patents were refused because of land was legally appropriated by other persons, the existence of the outstanding patents issued and was therefore segregated from the public to said Beebe as aforesaid; that from the time domain; that said Roswell Beebe and others of said locations, surveys, and returns in 1819 fraudulently conspired together for the purpose and 1820, up until the issuance of the Beebe of securing said patents, and by false represen- patents in 1838 and 1839, the said New Madrid tations, pretenses, and undue influence persuad- locations were the only titles to said lands, and [339] ed and "coerced the register" of the United under them the Town of Little Rock was laid States Land Office at Little Rock into the be-out and built on said lands, was duly incorporlief that he (Beebe) was entitled to said patents, etc.; and that by reason of said premises said patents are fraudulent and void.

ated, and contained hundreds of inhabitants
prior to and at the time when said patents were
issued; that said Beebe patents were issued on

[340]

[341]

Stoddard v. Chambers, 43 U. S. 2 How. 284 (11: 269); Barry v. Gamble, 44 U. S. 3 How. In Mahn v. Harwood, 112 U. S. 365 (28: 669), 32 (11:479); Lessieur v. Price, 53 U. S. 12 How. the court said that a patent can only be avoid59 (13: 893); Hale v. Gaines, 63 U. S. 22 How.ed by a direct proceeding. 144 (16: 264); Witherspoon v. Duncan, 71 U. S. 4 Wall. 218 (18: 342); Rector v. Ashley, 73 U. S. 6 Wall. 142 (18: 733); Hot Springs Cases, 92 U. S. 698, 713 (23: 690, 696).

All patents and certificates for lands so ap-| propriated are void.