operation lands within the exterior lines of the general route of the
railroad, and which, for the benefit of the railroad company, had been
withdrawn by executive order from preemption, private entry and sale.
The withdrawal order of 1865 did not stand in the way of the passage
of the act of 1866; first, because the acts of 1862 and 1864 by neces-
sary implication recognized the right of Congress to dispose of the odd-
numbered sections, within certain limits on each side of the road, or
any of them, at any time prior to the definite location of the line of
the railroad; second, both acts reserved to Congress the power to alter,
amend or repeal them; third, the filing of the map of general route
gave the railroad company no claim to any specific lands within the
exterior limits of such route on either side of the road, the rule being
that a grant of public lands in aid of the construction of a railroad is,
until its route is established, in the nature of a “float," and title does
not attach to any specific sections until they are identified by an ac-
cepted map of definite location of the line of the road. The railroad
company accepted the grant subject to the possibility that Congress
might, in its discretion, and prior to the definite location of its line,
sell, reserve or dispose of enumerated sections for other purposes than
those originally contemplated. Consequently, at the date of the defi-
nite location of the railroad in 1870, there was a "lawful claim" upon
these lands based on the act of 1866, which confirmed to the State, for
the benefit of those who had purchased from it in good faith, lands
embraced by its provisions. Menotti v. Dillon, 703.
15. The Board of Commissioners appointed under the act of Congress
of March 3, 1851, 9 Stat. 631, c. 41, confirmed to Manuel Dominguez
and others, claimants under a Mexican grant, a certain tract of land
known as the Rancho San Pedro. Upon appeal to the District Court
of the United States for the Southern District of California, the action
of the Board was approved, and it was adjudged, February 10, 1857,
that the claimants had a valid title to that ranche, the decree giving
the boundaries to the land so confirmed. In execution of the decree,
the lands were surveyed under the direction of the United States
surveyor general of California. The survey upon its face excepted,
reserved and excluded from the claim surveyed the Inner Bay of San
Pedro. Within the exterior lines of that Bay is Mormon Island,
containing at mean low tide 18.88 acres, and at mean high tide, about
one acre. The survey having been filed in the Land Department, a
patent was issued February 19, 1858, to the claimants under the
decree of confirmation, conveying lands that were outside the exte-
rior lines of the Inner Bay of San Pedro, and containing eight square
leagues more or less. The patent followed the survey, and did not
include that Bay or any lands within its exterior lines. The present
action was brought by various parties, asserting title under the decree
of confirmation, to recover possession of the above 18.88 acres. The
defendant claimed under a patent issued to him by the United States
in 1881. No application was ever made to the District Court of the
United States to correct any error in the decree of 1857, nor was any
step taken to have a new survey or to obtain a patent conveying all
the lands apparently embraced by that decree: Held, (1) If the sur-
veyor general misinterpreted the decree of confirmation, and made
a survey which excluded from the surveyed claim any of the lands
within the lines given by that decree, it was within the power of the
District Court to have its decree properly executed, and to that end
to order a new survey; (2) While it may be true, in some cases, that
an action to recover possession of lands confirmed to a claimant under
the act of 1851 can be maintained before a patent is issued, a patent
issued avowedly in execution of a decree passed under that act, was
conclusive between the United States and the claimants, and until
cancelled, such patent alone determines, in an action to recover
possession, the location of the lands that were confirmed by the
decree; (3) The patent in question having been accepted by the
patentees, and being uncancelled, the plaintiffs in this action, claim-
ing under the patentees, cannot recover lands not embraced by it,
even if such lands are embraced by the lines established by the decree
of confirmation - the conclusive presumption being that the patent,
being uncancelled, correctly locates the lands covered by the con-
firmed grant. Dominguez de Guyer v. Banning, 723.
16. The court further said it was unnecessary to decide whether the
defendant was entitled to a judgment on his cross-complaint, or
whether the lands under the navigable waters of the Inner Bay of
San Pedro, and those here in controversy or any part thereof, passed
to the State of California upon its admission into the Union, or after
the issuing of the patent of 1858. Ib.
See CONSTITUTIONAL LAW, 10;
JURISDICTION, D, 3;
MINERAL LAND.
A brakeman on a regular train of a railroad and the conductor of a
wild train on the same road are fellow-servants, and the railroad
company is not responsible for injuries happening to the former by
reason of a collision of the two trains, caused by the negligence of the
latter, and by his disregard of the rules of the company. Northern
Pacific Railroad v. Poirier, 48.
INTERSTATE COMMERCE ACT; PUBLIC LAND, 1.
Chappell v. Waterworth, 155 U. S. 102, affirmed to the point that a case
not depending on the citizenship of the parties nor otherwise spe-
cially provided for, cannot be removed from a state court into the
Circuit Court of the United States, as one arising under the Consti-
tution, laws or treaties of the United States, unless that appears by
the plaintiff's own statement; and, if it does not so appear, the want
cannot be supplied by any statement in the petition for removal or in
the subsequent pleadings. Walker v. Collins, 57.
REMOVAL FROM OFFICE.
See CONSTITUTIONAL LAW, 5, 6, 7, 8.
RES JUDICATA.
See TAX AND TAXATION, 2.
The act of June 19, 1886, c. 421, 24 Stat. 19, did not repeal the provisions
of the act of June 26, 1884, c. 121, 23 Stat. 59, as respects expenditures
by shipping commissioners other than for clerks. United States v.
Reed, 664.
1. By the act of January 30, 1836, the legislature of Louisiana exempted
the capital of the Citizens' Bank in New Orleans from taxation. New
Orleans v. Citizens' Bank, 371.
2. The two judgments of the District Court of New Orleans between the
bank and the city, which are set forth in the opinion of this court,
hold that this exemption continued after the expiration of the origi-
nal charter and during its extension, and as they were made upon
identically the same facts and circumstances as those here presented,
they are res judicata, conclusive upon the parties, and estop the city
from attempting to enforce such taxes. Ib.
3. The exemption of the capital of a corporation from taxation does not
necessarily exempt its shareholders from taxation on their shares of
stock. Ib.
4. The claim of the bank to non-liability to taxation on property acquired
by it under foreclosure of a mortgage is rejected, without prejudice to
the right of the State and the municipal authorities to claim a license
tax, if imposed by law on the bank, and without prejudice to the right of
the bank to assert any legal defences to the payment of such tax. Ib.
5. The decision of the Supreme Court of Pennsylvania that the act of
June 8, 1891, in respect of the taxation of national banks does not
conflict with the constitution of that State is conclusive on this court.
Merchants' & Manufacturers' Bank v. Pennsylvania, 461.
6. There is no lack of uniformity of taxation under that act which renders
it obnoxious to that part of the Fourteenth Amendment to the Fed-
eral Constitution which forbids a State to "deny to any person within
its jurisdiction the equal protection of the laws," as the right of elec-
tion which, if not availed of by all, may produce an inequality, is
offered to all. Ib.
7. That act treats state banks and national banks alike; gives to each the
same privileges; and there is no discrimination against national banks
as such. Ib.
8. The making the national bank the agent of the State to collect such taxes
is a mere matter of procedure, and there is no discrimination against
the national banks in the fact that the state banks are not so com-
pelled, but the auditor general looks to the stockholders directly. Ib.
9. The statute, by fixing the time when the bank shall make its report,
and directing the auditor general to hear any stockholder who may de-
sire to be heard, provides "due process of law" in these respects. Ib.
See CONSTITUTIONAL LAW, 13 to 16;
NATIONAL BANK, 1.
1. The power of a court of equity to remove a trustee, and to substitute
another in his place, is incidental to its paramount duty to see that
trusts are properly executed; and may properly be exercised, when-
ever such a state of mutual ill-feeling, growing out of his behavior,
exists between him and his cotrustee or the beneficiaries, that his
continuance in office would be detrimental to the execution of the
trust, even if for no other reason than that human infirmity would
prevent them from working in harmony with him, and although
charges of misconduct against him are either not made out, or are
greatly exaggerated. May v. May, 310.
2. A testator devised all his estate to his wife and a son, in trust to pay
to the wife one third of the income of the real estate for life, and one
third of the personal property absolutely; to divide the income of the
other two thirds of the estate, after paying his debts and cancelling
existing mortgages, among his children and their issue; and in cer-
tain circumstances to sell or mortgage the real estate, if necessary;
the two trustees to exercise jointly all the powers conferred, except
that the son should manage the real estate, collect the rents th of,
pay the taxes and other expenses thereon, and render monthly ac-
counts to the wife; and gave the other children, "for good and
sufficient cause," and with the widow's concurrence, power, "by their
unanimous resolution " to remove him from his office of trustee, and
to appoint another person in his stead. Held, that the other children,
with the concurrence of the widow, had power to remove him, for
what they determined to be good and sufficient cause, subject to the
jurisdiction of a court of equity to restrain abuse of the power; and
that his removal from the office of trustee terminated his authority to
manage the real estate. Ib.
3. The filing of a bill by a trustee under a will to obtain the instructions
of a court of equity in the execution of his trust does not suspend a
power of removing him given to the beneficiaries by the will; but
only subjects their action to the supervision and control of the
court. Ib.
4. Upon a bill in equity by a trustee for instructions in the execution of
his trust, the court will not decide questions depending upon future
events, and affecting the rights of parties not in being, and unneces-
sary to be decided for the present guidance of the trustee. Ib.
5. Under a will by which the testator devises and bequeaths all his estate
in a trust to pay to his widow one third of the net annual income of
the real estate during her life, and one third of the personal property
absolutely, and to divide the income of the estate, with the exception
of her thirds, after paying his debts and cancelling existing mortgages,
among his children, the widow is entitled to a third of the income of
the real estate, deducting taxes, insurance and repairs, but without
any deduction for interest on debts or mortgages.
Ib.
A general verdict is not a nullity by reason of its being received or re-
corded on Sunday.
Stone v. United States, 178.
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