granted lands to Iowa to aid in the construction of certain railroads
in that State, among others a railroad from Dubuque to Sioux City.
That act excepted from its operation all lands previously reserved to
the United States by any act of Congress, or in any other manner, for
any purpose whatsoever.
The lands, interests, rights, powers and
privileges granted by the last-named act, so far as they related to the
proposed road from Dubuque to Sioux City, were transferred by the
State in 1856 to the Dubuque and Pacific Railroad Company. In the
same year, the county court of Calhoun County, Iowa, appointed an
agent to select and certify the swamp lands in that county, in accord-
ance with the above act of 1853. The lands in controversy are within
the limits of the railroad grant of May 15, 1856, and were earned by
the building of the road from Dubuque to Sioux City, if they were
subject at all to that grant. The several defendants hold by suffi-
cient conveyance all the title and interest which passed under the
railroad grant, if any title or interest thereby passed. Under date of
December 25, 1858, these with other lands were certified to the State
by the General Land Office of the United States as lands within the
place limits defined by the railroad act of 1856 of the Dubuque and
Pacific Railroad. A list of the tracts so certified to the State was
approved by the Secretary of the Interior, subject to the conditions of
the act of 1856 and to any valid interfering rights existing in any of
the tracts embraced in the list. The selection of these lands as swamp
lands by the agent of Calhoun County was reported to the county
court of that county September 30, 1858. March 27, 1860, the sur-
veyor general for the State certified these lands as swamp and over-
flowed lands, and this certificate was received in the General Land
Office March 27, 1860, and at the local land office at Des Moines,
Iowa, February 18, 1874. It did not appear that the Secretary of the
Interior ever took any action in respect to the lists made by the agent
of Calhoun County of lands selected by him as swamp lands, nor that
the State or the county, or any one claiming under the county, ever
directly sought any action by the General Land Office or by the
Secretary of the Interior in respect to such selection. December 12,
1861, a written contract was made between the county of Calhoun,
Iowa, and the American Emigrant Company in relation to the swamp
and overflowed lands in that county. Subsequently, in 1863, the
county, although no patent had ever been issued to the State, con-
veyed to that company the lands in controversy. Held, (1) That the
Secretary of the Interior had no authority to certify lands under the
railroad act of 1856 which had been previously granted to the State
by the Swamp Land act of 1850; (2) That whether the lands in con-
troversy were swamp and overflowed lands within the meaning of the
act of 1850 was to be determined, in the first instance, by the Secre-
tary of the Interior; and that when he identified lands as embraced by
that act, and not before, the State was entitled to a patent, and on
such patent the fee simple title vested in the State, and what was
before an inchoate title then became perfect as of the date of the act;
(3) That when the Secretary of the Interior certified in 1858 that the
lands in controversy inured to the State under the railroad act of
1856, he, in effect, decided that they were not embraced by the
Swamp Land act of 1850; that it was open to the State, before accept-
ing the lands under the railroad act, to insist that they passed under
the act of 1850 as swamp and overflowed lands; that if the State con-
sidered the lands to be covered by the Swamp Land act, its duty was
to surrender the certificate issued to it under the railroad act; and
that it could not take them under one act, and, while holding them
under that act, pass to one of its counties the right to assert an inter-
est in them under another and different act; (4) That the county of
Calhoun, being a mere political division of the State, could have no
will contrary to the will of the State; that its relation to the State is
such that the action of the latter in 1858 in accepting the lands under
the railroad act was binding upon it as one of the governmental
agencies of the State; that the county could not, after such accept-
ance, claim these lands as swamp and overflowed lands, or, by assum-
ing to dispose of them as lands of that character, pass to the
purchaser the right to raise a question which it was itself estopped
from raising; that the Emigrant Company could not, by any agree-
ment made with the county in 1861 or afterwards, acquire any greater
rights or better position in respect to these lands than the county
itself had after the certification of them to the State in 1858 as lands
inuring under the railroad act of 1856; and that the plaintiff claiming
under the county and State was concluded by the act of the State in
accepting and retaining the lands under that statute. Rogers Loco-
motive Machine Works v. American Emigrant Company, 559.
See JURISDICTION, A, 7, 8;
MORTGAGE, 2, 3;
TAX AND TAXATION, 8.
1. The action of executive officers in matters of account and payment can-
not be regarded as a conclusive determination, when brought in ques-
tion in a court of justice. Wisconsin Central Railroad Co. v. United
States, 190.
2. The government is not bound by the act of its officers, making an unau-
thorized payment, under misconstruction of the law. Ib.
3. Parties receiving moneys, illegally paid by a public officer, are liable ex
æquo et bono to refund them; and there is nothing in this record to
take the case out of the scope of that principle. Ib.
4. The forms of pleading in the Court of Claims do not require the right
to recover back moneys so illegally paid to be set up as a counter-
claim in an action brought by the party receiving them to recover
further sums from the government.
The complainant in this case charged that the Atchison, Topeka and
Santa Fé Company and the plaintiff in error, corporations of the State
of Massachusetts, were, at the time of the injury complained of, jointly
operating a railroad; that the defendant was travelling upon it with
a first class ticket; and that by reason of negligence of the defendants
an accident took place which caused the injuries to the plaintiff for
which recovery was sought. The answers denied joint negligence, or
joint operation of the road, and admitted that the plaintiff in error
was operating it at the time. A trial resulted in a verdict in favor of
the Atchison Company and against the plaintiff in error. On the trial
the complaint was amended by substituting "second class " for "first
class" ticket, and that the charters were by acts of Congress, and to
the complaint so amended the statutes of limitations was pleaded.
A judgment on the verdict was set aside and an amended complaint
was filed in which the plaintiff in error was charged to have done the
negligent acts complained of, and recovery was sought against it. A
second trial resulted in a verdict against the company. Held, (1) That
the action was ex delicto; that the defendants might have been sued
either separately or jointly; that recovery might have been had, if
proof warranted against a single party; and that the amendment,
dismissing one of two joint tort feasors, and alleging that the injury
complained of was occasioned solely by the remaining defendant, did
not introduce a new cause of action; (2) That the amendment stat-
ing that the plaintiff was travelling upon a second class ticket instead
of a first class ticket, and that the plaintiff in error was chartered by
an act of Congress instead of by a statute of Massachusetts, as origi-
nally averred, did not state a new cause of action. Atlantic & Pacific
Railroad Co. v. Laird, 393.
See PUBLIC LAND, 12, 13, 14;
1. After the death of the receiver, this case was properly revived in the
name of his executrix. Cake v. Mohun, 311.
2. While, as a general rule, a receiver has no authority, as such, to continue
and carry on the business of which he is appointed receiver, there is a
discretion on the part of the court to permit this to be done when the
interests of the parties seem to require it; and in such case his power
to incur obligations for supplies and materials incidental to the business
follows as a necessary incident to the office. Ib.
3. A purchaser of property at a receiver's sale who, under order of court,
in order to get possession of the property gives an undertaking, with
surety, conditioned for the payment to the receiver of such amounts as
should be found due him on account of expenditures or indebtedness
as well as compensation, thereby becomes liable for such expenditures
and indebtedness. Ib.
4. In determining what allowances shall be made to a receiver and to his
counsel this court gives great consideration to the concurring views of
the auditor or master and the courts below; and it is not disposed to
disturb the allowance in this case, although, if the question were an
original one it might have fixed the receiver's compensation at a less
amount. lb.
5. A passenger on the road of the Texas Pacific Railway Company sued
that company and its receiver in a Texas court in an action at law to
recover for injuries received when travelling on its road while it was
in the hands of the receiver. The case was removed to the Circuit
Court of the United States, where a trial was had. The receivership
had been terminated before the commencement of the action, and the
property had, by order of the court, been transferred to the company
under the circumstances and on the conditions described in Texas &
Pacific Railway v. Johnson, 151 U. S. 81, and in this case the company
contended that it was not liable, or if liable, that the claim could only
be enforced in equity. The trial resulted in a verdict and judgment
for the plaintiff. Held, that under the circumstances the company
was liable to the plaintiff in an action at law, for the damages found
by the jury; that the conduct of the railway company in procuring, or,
at least, in acquiescing in the withdrawal of the receivership and the
discharge of the receiver and the cancellation of his bond and in ac-
cepting the restoration of its road, largely increased in value by the
betterments, affords ground to charge an assumption of such valid
claims against the receiver as were not satisfied by him, or by the
court which discharged him. Texas & Pacific Railway Company v.
Bloom's Administrator, 636.
1. The filing by the defendant in an action in a state court of a petition
for its removal to the proper Circuit Court of the United States does
not prevent the defendant, after the case is removed, from moving in
the Federal court to dismiss it for want of jurisdiction of the person
of the defendant in the state court or in the Federal court. Wabash
Western Railway v. Brow, 271.
2. A defendant, by filing a petition in a state court for removal of the
cause to the United States court, in general terms, unaccompanied by
a plea in abatement, and without specifying or restricting the purpose
of his appearance, does not thereby waive objection to the jurisdiction
of the court for want of sufficient service of the summons. National
Accident Society v. Spiro, 281.
A. CONSTRUCTION OF STATUTES.
1. Statutes granting privileges or relinquishing rights of the public are to
be strictly construed against the grantee.
Wisconsin Central Railroad
Co. v. United States, 190.
2. An intention to surrender the right to demand the carriage of mails
over subsidized railroads at reasonable rates, assumed in construing
a statute of the United States, is opposed to the established policy of
Congress. Ib.
3. The punctuation of a statute is not decisive of its meaning. Ford v.
Delta & Pine Land Co., 662.
See DIRECT Tax Refunding Act, 2.
B. STATUTES OF THE UNITED STATES.
See CLAIMS AGAINST THE UNITED JURISDICTION, A, 1, 2, 12; B, 6;
MAILS, TRANSPORTATION OF, 2;
MORTGAGE, 2, 3;
DIRECT TAX REFUNDING ACT, NATIONAL BANK, 1;
PUBLIC LAND, 3, 4, 12, 14, 15.
C. STATUTES OF STATES And Territories.
See JURISDICTION, A, 9.
See TAX AND TAXATION, 3 to 10.
See LOCAL LAW, 1.
See CONSTITUTIONAL LAW, 2, 7, 9;
JURISDICTION, A, 3.
See CONSTITUTIONAL LAW, 14.
See TAX AND TAXATION, 1.
See PUBLIC LAND, 15.
See CONSTITUTIONAL LAW, 13.
Massachusetts. See NATIONAL BANK, 1.
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