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enacted that suits should be brought in the | sued for itself,-here it sues on behalf of the United States circuit court against all claim- Indians. But that is not true in any sense ants of any interest under the grant of 1864, having legal significance. It would be true and certain others, "to determine the ques- of a suit by an executor as compared with a tions of the seasonable and proper comple-suit by the same person on his own behalf. tion of said roads in accordance with the But that is because in theory of law the exterms of the granting acts. The ecutor continues the persona of the testalegal effect of the several certificates of the tor, and therefore is a different person from governors of the state of Oregon of the com- the natural man who fills the office. This pletion of said roads, and the right of re- is recognized in Leggott v. Great Northern sumption of such granted lands by the Unit- R. Co. L. R. 1 Q. B. Div. 599, 606, cited for ed States." The court was authorized to the United States. Here the plaintiff is the render judgment of forfeiture "saving and same person that brought the former bill, preserving the rights of all bona fide purchas- whatever the difference of the interest iners of either of said grants or of any por- tended to be asserted. See Werlein v. New tion of said grants for a valuable considera- Orleans, 177 U. S. 390, 400, 401, 44 L. ed. tion, if any such there be. Said suit or suits 817, 822, 20 Sup. Ct. Rep. 682. The best shall be tried and adjudicated in like man- that can be said, apart from the act just ner and by the same principles and rules quoted, to distinguish the two suits, is that of jurisprudence as other suits in equity are now the United States puts forward a new therein tried." The act of March 2, 1896 ground for its prayer. Formerly it sought (29 Stat. at L. 42, chap. 39),1 also confirmed to avoid the patents by way of forfeiture. the title of bona fide purchasers. Now it seeks the same conclusion by a different means,-that is to say, by evidence that the lands originally were excepted from the grant. But in this as in the former suit, it seeks to establish its own title to the fee.

By § 2, "the state of Oregon, and any person or corporation claiming any interest under or through the grants aforesaid in the lands to be affected by said suit or suits, and whether made a party thereto or not, may intervene therein by sworn petition to defend his interest therein, as against the United States, or against each other, and affecting the said question of forfeiture, and may, upon such petition for intervention, also put in issue and have adjudicated and determined any other question, whether of law or of fact, which may be in dispute between said intervener and the United States, and affecting the right or title to any part of the lands claimed to have been embraced within the grants. . . . Should the lands embraced within said grants or either of them, or any portion thereof, be declared forfeited by the final determination of said suit or suits, the same shall be immediately restored to the public domain, and become subject to disposal under the general land laws; and should the final determination of said suit or suits maintain the right of the aforesaid wagon-road grantees or their assigns to the lands embraced in said grants, the Secretary of the Interior shall forthwith adjust said grants in accordance with such determination, and shall cause patents to be is-ter Supply Co. v. Mobile, 186 U. S. 212, 216, sued for the lands inuring to said grantees under said wagon-road grants and which have been heretofore unpatented."

...

On the general principles of our law it is tolerably plain that the decree in the suit under the foregoing statute would be a bar. The parties, the subject-matter, and the relief sought all were the same. It is said, to be sure, that the United States now is suing in a different character from that in which it brought the former suit. There it'

1 U. S. Comp. St. 1901, p. 1603.

It may be the law in Scotland that a judg. ment is not a bar to a second attempt to reach the same result by a different medium concludendi. Phosphate Sewage Co. v. Molleson, 5 Ct. Sess. Cas. 4th Series, 1125, 1139; although in the same case on appeal Lord Blackburn seemed to doubt the proposition if the facts were known before. S. C. L. R. 4 App. Cas. 801, 820. But the whole tend ency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time. He cannot even split up his claim (Fetter v. Beale, 1 Salk. 11; Trask v. Hartford & N. H. R. Co. 2 Allen, 331; Freeman, Judgm. 4th ed. §§ 238, 241); and, a fortiori, he cannot divide the grounds of recovery. Unless the statute of 1889 put the former suit upon a peculiar footing, the United States was bound then to bring forward all the grounds it had for declaring the patents void, and when the bill was dismissed, was barred as to all by the decree. Werlein v. New Orleans,*177 U. S. 390, 44 L. ed. 817, 20 Sup. Ct. Rep. 682; Bienville Wa

217, 46 L. ed. 1132, 1134, 22 Sup. Ct. Rep. 820; Hoseason v. Kcegen, 178 Mass. 247, 59 N. E. 627; Wildman v. Wildman, 70 Conn. 700, 710, 41 Atl. 1; Sayers v. Auditor General, 124 Mich. 259, 82 N. W. 1045; Foster v. Hinson, 76 Iowa, 714, 720, 39 N. W. 682; State v. Brown, 64 Md. 199, 1 Atl. 54, 6 Atl. 172; Boyd v. Boyd, 53 App. Div. 152, 159, 65 N. Y. Supp. 859; Shaffer v. Scuddy, 14 La. Ann. 576; Henderson v. Henderson, 3 Hare, 100, 115.

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Deoree reversed and case remanded to the Circuit Court with instructions to enter a decree dismissing the bill and cross bill.

The question, then, is narrowed to wheth- | Blythe v. Hinckley, 84 Fed. 228, 236, 237. er the statute established a special and But apart from any other questions it may peculiar rule of procedure for the cases be presumed that after this decision no acto be brought under it. No doubt it is true tion will be attempted based on a denial of the that the ground of recovery that was promin- land company's title to the fee. ent in the mind of Congress was an alleged forfeiture of the grant, and therefore not unnaturally, in § 2, the result of a forfeiture is stated. But a forfeiture was not the only ground on which the United States might have prevailed. All claimants of any interest were at liberty to intervene and to have any other question affecting the title settled, and if any such other question had been raised and resolved in favor of the United States, of course the same result would have followed. But it cannot be supposed that the United States was not at liberty to raise the same issues which defendants and interveners were

Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan and Mr. Justice Brown, dissenting:

It will be assumed that the lands in controversy had been reserved for the Indians prior to the taking effect of the grant, "except so far as it may be necessary to locate the route of said road through the same, in which case the right of way is granted."

The act of 1866 made provision for supply. given the right to raise. There is no reason ing deficiencies "occasioned by any lands for such a discrimination, and its right was sold or reserved, or to which the rights of admitted at the argument. But if the Unit-pre-emption or homestead have attached, or ed States was at liberty to state all its which for any reason were not subject to grounds for claiming the land, it was bound said grant." [14 Stat. at L. 374, chap. 5.] to do so on "the same principles and rules of jurisprudence as other suits in equity are theren tried," by which principles and rules,

March 2, 1889, Congress directed the Attorney General to cause a suit or suits to

be brought against all persons, firms, and as has been shown, it was expressly enacted that the case should be tried. So far from corporations claiming interests in lands establishing a special rule, the act shows an granted to the state of Oregon, by three intent to settle the title once for all. It was enumerated acts of Congress, including that "To dealing with several grants which might preunder consideration: determine the sent different cases. It stated in terms that questions of the seasonable and proper comthe suits should be brought to determine pletion of said roads in accordance with the not merely the question of forfeiture, but terms of the granting acts, either in whole "the right of resumption of such granted or in part, the legal effect of the several lands by the United States," § 1, and it pro- certificates of the governors of the state of vided that if the suits should maintain the Oregon of the completion of said roads, and right of the wagon-road grantees or their the right of resumption of such granted assigns to the lands embraced in said grants, lands by the United States, and to obtain the Secretary of the Interior should adjust judgments, which the court is hereby authe grants in accordance with the determin-thorized to render, declaring forfeited to the ation, and issue patents for the lands to which the grantees were entitled and which had not been patented. See also the language of the act of March 2, 1896, § 1 (29 Stat. at L. 42, chap. 39). It would not be consistent with the good faith of the United States to attribute to it the intent to keep a concealed weapon in reserve in case these suits should fail. On the face of the act it seems to us apparent that these suits were intended to quiet or to end the title of the wagon-road grantees.

As the bill must be dismissed there seems to be no reason why the cross bill should not be dismissed, according to the general rule in such cases. Dows v. Chicago, 11 Wall. 108, 20 L. ed. 65. It is true that the cross bill is not merely in aid of the defense, and that relief has been given upon a cross bill in such a case, notwithstanding the dismissal of the bill. Holgate v. Eaton, 116 U. S. 33, 42, 29 L. ed. 538, 540, 6 Sup. Ct. Rep. 224;

United States, all of such lands as are coterminous with the part or parts of either of said wagon roads which were not constructed in accordance with requirements of the granting acts, and setting aside patents which have issued for any such lands, saving and preserving the rights of all bona fide purchasers of either of said grants or of any portion of said grants for a valuable consideration, if any such there be."

By the second section of the act it was provided that the state or any person or corporation claiming under the grant might intervene and defend his interest therein, and might "also put in issue and have adjudicated and determined any other question, whether of law or of fact, which may be in dispute between said intervener and the United States, and affecting the right or title to any part of the lands claimed to have been embraced within the grants of lands by the

198.

62

My brothers Harlan and Brown concur in this dissent.

(192 U. S. 286)

United States to or for either of said wagon | and did not see fit to bring any other into the roads. Should the lands embraced within case. said grants or either of them or any portion thereof be declared forfeited by the final determination of said suit or suits, the same shall be immediately restored to the public domain, and become subject to disposal under the general land laws; and should the final determination of said suit or suits maintain the right of the aforesaid wagon road grantees or their assigns to the lands embraced in said grants, the Secretary of the Interior shall forthwith adjust said grants in accordance with such determina- Original jurisdiction-suits between states tion," etc. on state bonds - necessary parties defend

The act related to three wagon-road grants, only one of which was involved in this case.

STATE OF SOUTH DAKOTA, Complainant,

v.

STATE OF NORTH CAROLINA, Charles
Salter, and Simon Rothschilds.

ant.

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This bill sought a forfeiture of 1. Individual owners of bonds issued by the

the entire grant for reasons stated, and no other matter was put in issue. The bill covered the lands in the reservation and many thousands of acres besides. It seems to me clear that Congress did not intend that the United States should ask a forfeiture and at the same time litigate exceptions from the grant. The second section is wholly inconsistent with such a theory. The issue was a single issue, and defendants did not seek to have it expanded. The suit was decided in favor of defendants (148 U. S. 31, 37 L. ed. 354, 13 Sup. Ct. Rep. 458), and the present bill having been filed in respect of the lands of the Indian reservation, it is now tended that the former decree is a bar to its prosecution.

con

I do not think so. The former case sought a forfeiture of the entire grant. This bill, | accepting the conclusion that there could be no forfeiture simply sought relief as to particular lands which had not been embraced in the grant and did not pass thereby, but

which had been patented in error. Conceding

2.

state of North Carolina, each of which is secured by a separate mortgage of ten shares of railroad stock belonging to that state, are not necessary parties defendant to a sult by the state of South Dakota, as the owner of certain of these bonds, to compel payment and a subjection of the mortgaged property to the satisfaction of the debt.

over

The original jurisdiction of the Federal Supreme Court, under U. S. Const. art. 3, § 2, "controversies between two or more states," extends to a suit by the state of South Dakota as the donee of the holders of certain bonds issued by the state of North Carolina, and secured by a mortgage of railroad stock belonging to that state, to compel payment of the bonds and a subjection of the mortgaged property to the satisfaction of the debt.

[No. 8, Original.]

Argued April 13, 14, 15, 1903. Ordered for reargument November 30, 1903. Reargued January 8, 11, 12, 1904. Decided February 1, 1904.

Dakota against the State of North Carolina, on bonds issued by the latter state, and secured by a mortgage of railroad stock belonging to such state, to compel payment of the bonds and a subjection of the mortgaged property to the satisfaction of the debt. De

RIGINAL SUIT by the State of South

that Congress may pass title subject to Indian occupancy, it did not do so; but these lands were reserved from the grant, while in terms the right of way through the reservation was granted. Had the decree in the prior case been for the government, this cree for the amount due on the bonds and right of way would have been declared forfeited with other lands included in the grant, payment, for the sale, at public auction, of coupons in suit; and, in default of such but as the case turned out the right of way the interest of the state of North Carolina passed while the reservation remained un-in certain railroad stock mortgaged by it as affected. The cause of action in this suit security for the payment of the bonds. is entirely different and governed by entirely different considerations from the cause of action in the prior suit. And I think the decree in the former suit operates as an estoppel only as to the point or question actually litigated and determined.

There is no hardship involved in this view, as while the United States were shut up to the question of forfeitures, defendants were permitted to raise any questions they chose,

Statement by Mr. Justice Brewer: *By an act passed in 1849 (chap. 82, Laws 1848-49), the North Carolina Railroad Company was chartered by the state of North Carolina with a capital of $3,000,000, divided into 30,000 shares of $100 each. The state subscribed for 20,000 shares. The statute authorized the borrowing of money to pay the state subscription, and pledged as

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Witness the signature of the public treasurer and seal of office, and the countersignature of the comptroller.

Kemp P. Battle,
Public Treasurer.

S. W. Burgin, Comptroller.

security therefor the stock of the railroad | Carolina Railroad Company, originally subcompany held by the state. In 1855 a fur- scribed for by the state, are hereby mortther subscription for 10,000 shares was au-gaged as collateral security for the payment thorized by statute (chap. 32, Laws 1854- of this bond. 55), to be issued on the same terms and with the same security. At the same session an act was passed incorporating the Western North Carolina Railroad Company (chap. 228, Laws 1854-55), which authorized a subscription by the state and the issue of bonds secured by the stock held by the state in said company. On December 19, 1866, a further act was passed (chap. 106, Laws 1866-67), entitled "An Act to Enhance the Value of the Bonds to be Issued for the Completion of the Western North Carolina Railroad, and for Other Purposes," which, after referring to the prior acts of the state authorizing the issue of bonds, and stating that a portion of them had already been issued, added:

"And, whereas, it is manifestly the interest of the people of the whole state that the residue of the bonds, when issued, shall command a high price in market; therefore, "Sec. 1. Be it enacted by the general assembly of the state of North Carolina, and it is hereby enacted by the authority of the same, That the public treasurer be, and he is hereby, authorized and directed, whenever it shall become his duty under the provisions of said acts, passed at the sessions of 1854-55 and 1860-61, to issue bonds of the state to the amount of $50,000 or more, to mortgage an equal amount of the stock which the state now holds in the North Carolina Railroad, as collateral security for the payment of said bonds, and to execute and deliver, with each several bond, a deed of mortgage for an equal amount of stock to said North Carolina Railroad, said mortgage to be signed by the treasurer and countersigned by the comptroller, to constitute a part of said bond, and to be transferable in like manner with it, as provided in the charter of said Western North Carolina Railroad Company; and, further, that such mortgages shall have all the force and effect, in law and equity, of registered mortgages without actual registry."

com

These bonds ran thirty years, and became due in 1897. In 1879 the state of North Carolina appointed commissioners to adjust and compromise the state debt, and all of the last-mentioned bonds have been promised with the exception of about $250,000. Simon Schafer and Samuel M. Schafer, either individually or as partners, owned a large proportion of these outstanding bonds, having held them for about thirty years. In 1901 Simon Schafer gave ten of these bonds to the state of South Dakota. The letter accompanying the gift was in these words:

Office of Schafer Brothers, No. 35 Wall St.,
New York, September 10th, 1901.
Hon. Charles H. Burke.
Dear Sir:-

The undersigned, one of the members of the firm of Schafer Bros., has decided, after consultation with the other holders of the second-mortgage bonds issued by the state of North Carolina, to donate ten of these bonds to the state of South Dakota.

The holders of these bonds have waited for some thirty years in the hope that the state of North Carolina would realize the justice of their claims for the payment of these bonds.

The bonds are all now about due, beside, of course, the coupons, which amount to some 170 per cent of the face of the bond.

The holders of these bonds have been advised that they cannot maintain a suit against the state of North Carolina on these bonds, but that such a suit can be maintained by a foreign state or by one of the United States.

The owners of these bonds are mostly, if Under this last act bonds were issued in not entirely, persons who liberally give char the sum of $1,000 each, having this indorse-ity to the needy, the deserving, and the unment:

State of North Carolina, Treasury Department. S Raleigh, July 1, 1867. Under the provisions of an act of the general assembly of North Carolina, entitled "An Act to Enhance the Value of the Bonds to be Issued for the Completion of the Western North Carolina Railroad Company, and for Other Purposes," ratified 19th December, 1866, ten shares of the stock in the North

fortunate.

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than accept the small pittance offered in set- | holders and owners of the bonds originally tlement.

issued by the state and secured by a pledge of the stock in the North Carolina Railroad Company under the acts of 1849 and 1855), and Charles Salter (alleged to be one of the

The donors of these ten bonds would be pleased if the legislature of South Dakota should apply the proceeds of these bonds to the state university or to some of its asy-holders of the bonds issued under the act of lums or other charities.

Very respectfully,
Simon Schafer.

Prior thereto, and on March 11, 1901, the state of South Dakota had passed the following act (Session Laws South Dakota, chap. 134, p. 227):

An Act to Require the Acceptance and Collections of Grants, Devises, Bequests, Donations, and Assignments to the State of South Dakota.

Be it enacted by the legislature of South Da

kota:

Sec. 1. That whenever any grant, devise, bequest, donation, or gift or assignment of money, bonds, or choses in action, or of any property, real or personal, shall be made to this state, the governor is hereby directed to receive and accept the same, so that the right and title to the same shall pass to this state; and all such bonds, notes, or choses in action, or the proceeds thereof when collected, and all other property or thing of value, so received by the state as aforesaid shall be reported by the governor to the legislature, to the end that the same may be covered into the public treasury or appropriated to the state university or to the public schools, or to state charities, as may hereafter be directed by law.

Sec. 2. Whenever it shall be necessary to protect or assert the right or title of the state to any property so received or derived as aforesaid, or to collect or to reduce into possession any bond, note, bill, or chose in action, the attorney general is directed to take the necessary and proper proceedings and to bring suit in the name of the state in any court of competent jurisdiction, state or Federal, and to prosecute all such suits, and is authorized to employ counsel to be associated with him in such suits or actions, who, with him, shall fully represent the state, and shall be entitled to reasonable compensation out of the recoveries and collections in such suits and actions.

This act was passed on the suggestion that perhaps a donation of bonds of southern states would be made to the state. On November 18, 1901, the state of South Dakota, leave having been first obtained, filed in this court its bill of complaint, making defendants the state of North Carolina, Simon Rothschilds (alleged to be one of the

1855 and 1866, on account of the subscription to the Western North Carolina Railroad Company), the two individuals being made defendants as representatives of the classes of bondholders to which they severally belong. In it the plaintiff, after setting forth the facts in reference to the several issues of bonds and its acquisition of title to ten, prayed that an account might be taken of all the bonds issued by virtue of these statutes; that North Carolina be required to pay the amount found due on the bonds held by the plaintiff, and that in default of payment North Carolina and all persons claiming under said state might be barred and foreclosed of all equity and right of redemption in and to the 30,000 shares of stock held by the state, and that these shares, or as many thereof as might be necessary to pay off and discharge the entire mortgage indebtedness, be sold, and the proceeds, after payment of costs, be applied in satisfaction of the bonds and coupons secured by such mortgages; and also for a receiver and an injunction.

Defendant Rothschilds made no answer.

On April 2, 1902, the state of North Carolina and the defendant Charles Salter, filed separate answers. North Carolina in its answer denied both the jurisdiction of this court and the title of the plaintiff; averred that the bonds were not issued in conformity with the statute; admitted the ownership of 30,000 shares of stock; denied that the mortgages were properly executed or that they had the effect of conveyances or transfers, either in law or equity, of said stock, or conferred any lien by way of pledge or otherwise upon the same; denied that she ever had any compact or agreement whatever other than that contained in the Constitution of the United States with South Dakota, or that South Dakota had ever informed North Carolina of any claim against her, or made any demand in respect to it, or any effort to settle or accommodate. Salter's answer was mainly an admission of the allegations of the bill, with a claim that

all the stock should be sold in satisfaction of the mortgage bonds of which he was charged to be the representative. Testimony was taken under direction of the court, before commissioners agreed upon by the parties.

Messrs. Wheeler H. Peckham and R. W. Stewart for complainant.

Messrs. George Rountree, James E.

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