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of property either in its own right or as trustee for charitable uses. In 1872, however, the legislature dealt with the subject again, and without expressly repealing sections 2439–2441 of the Code of 1871, above quoted, enacted:

“That sections 2439, 2440 and 2441, article 7, chapter 35, of the Revised Code of 1871, be so amended and construed as in no manner whatsoever to prohibit or prevent any religious society or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society of this state, or of any of the United States, incorporated by the laws of any of the other states of the Union, prior to the adoption of the Code of this state of 1871, the acts of incorporation of which grant the franchise of taking, receiving, acquiring and holding real and personal estate, as provided for in the act of incorporation of said religious societies, corporations or denominations; and that said sections aforesaid shall, in no manner whatever, interfere with, be construed so as to limit or otherwise impair the franchise granted by the laws of this state, or by the laws of any of the states of the Union, to any religious society or corporation aforesaid, to receive, take, acquire, and hold real and personal estate, as provided in said acts of incorporation.” See Laws Miss. 1872, p. 32, c. 26.

And to the end that the construction given by this act should be coextensive with the articles of the Code thus legislatively construed, it was enacted that the act itself, approved March 20, 1872, should take effect and be in force from and after the 1st day of October, 1871, the day on which the Revised Code of 1871 went into effect. In preparing the Code of 1880, the above-quoted act of 1872 was doubtless regarded as practically repealing sections 2439, 2440, and 2441 of the Code of 1871, for those sections were all omitted.

We have been favored on both sides with an interesting discussion as to the scope and effect of sections 2437 and 2438 of the Code of 1871, reproduced as sections 1071 and 1072 of the Code of 1880, in determining the public policy of the state as to the powers of religious corporations to take and hold real estate. As showing a legislative tendency to closely limit the powers of the religious societies created by section 1071, Code 1880 (section 2437, Code 1871), into quasi corporations, to hold, if not to take, real estate, the sections 1072 of the Code of 1880 and 2437 of the Code of 1871 are very impressive; but we cannot construe these sections as at all affecting the powers theretofore granted to full-fledged ecclesiastical corporations chartered by special laws, nor even affecting the powers of such religious corporations as should be thereafter fully chartered by the governor and attorney general under the provisions of sections 1027 to 1032 of the Code of 1880, which corporations were authorized to take and hold real and personal estate, not exceeding $50,000. See, also, Acts 1882, p. 50, c. 26. That the sections in question were not intended to apply to ecclesiastical corporations is shown by the fact that they were originally followed by the sections 2439, 2440, and 2441, Code 1871, which unquestionably apply. When Kaspar Auch's will took effect in 1886, and when the Presbyterian churches of New Orleans, devisees under the will of Kaspar Auch, conveyed to the grantors of the defendant in error, in 1888, this was the state of the law in regard to the power of religious corporations of Mississippi, or of other states of the Union, to acquire real estate or other property in Mississippi in trust for charitable uses. It may be here noted that the religious corporations of Louisiana, the trustees for char

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itable uses under Kaspar Auch's will, were fully empowered in that behalf prior to the adoption of the Mississippi Code of 1871, so that, for the purposes of this case, it is immaterial whether the restrictive sections 2439, 2440, and 2441 of the Code of 1871 were wholly repealed by the Code of 1880 or remained in force with the legislative construction of 1872. After the rights of the defendant in error were acquired and vested, and before the plaintiff in error acquired his title, the constitution of 1890 was enacted and declared in force. In this constitution the sections 2439, 2440, and 2441, as they appear in the Code of 1871, are practically reproduced and made a part of the fundamental law of the state. We do not understand that the constitution of 1890 was intended to give to the grantors of the plaintiff in error any rights to property in Mississippi not theretofore existing, or that it was intended to, even if it could, take away any of the vested rights of the defendant in error; and therefore we are of opinion that the question whether the laws and public policy of the state of Mississippi prohibited and avoided the grant of property in Mississippi to the devisees under the will of Kaspar Auch in trust for charitable uses must be determined by the laws and public policy in force at the time the devise took effect; and at that time, from the review we have given, it cannot be said that such devise was void because prohibited by law, or that there was such a well-defined public policy adverse to the power of ecclesiastical corporations to take and hold real estate for religious or charitable uses as would authorize this court to declare the devise void.

If possibly we are wrong as to this view of the public policy of the state of Mississippi, and the declaration in the constitution of 1890 can have retroactive effect against foreign religious corporations in regard to power to take, hold, and administer trusts for charitable uses, it is still clear that under the circumstances of this case the plaintiff in error, as holding from the heirs at law of Kaspar Auch, is without right or interest to raise the question. The trust was valid in 1886, whatever the powers of the trustees may have been, or whatever may be the since-declared public policy of the state of Mississippi, and therefore the heirs at law of Kaspar Auch were divested by his will of all interest in the property devised, and left without right to attack the same. Christian Union v. Yount, supra; Jones v. Habersham, supra.

"And if the trusts were in themselves valid in point of law, it is plain that neither the heirs of the testator nor any other private person could have any right to inquire into or contest the right of the corporation to take the property or execute the trust." Vidal v. Girard's Ex'rs, 2 How. 191.

The views herein expressed practically dispose of all the questions raised by the assignment of errors, and adversely to the plaintiff in error, and the judgment of the circuit court is therefore affirmed.

OAKES et al. v. MYERS, Jefferson County Treasurer.

(Circuit Court, D. Montana. June 22, 1895.)

No. 365.


Property in the hands of a receiver of a federal court cannot be reached by proceedings for the collection of state taxes, without the consent of such

court. In re-Tyler, 13 Sup. Ct. 785, 149 U. S. 164, followed. 2. PUBLIC LANDS-NORTHERN PACIFIC RAILROAD GRANT_TITLE_TAXATION.

Until the final determination by the government as to what lands within the limits of the grant to the Northern Pacific Railroad Company (Act Cong. July 2, 1864) are mineral, in accordance with the provisions of the grant excepting such lands from its operation, and with Act Cong. Feb. 26, 1895, requiring such determination to be made before the issue of any patent for the lands, no title of any kind to any of the lands within the grant passes to the company, and none of such land is taxable by the states in which it lies. Wisconsin Cent. R. Co. v. Price Co., 10 Sup. Ct. 341, 133 U. S. 496, and Barden v. Northern Pac. R. Co., 14 Sup. Ct. 1030, 154 U. S. 288, followed.

This was a suit by Thomas F. Oakes, Henry C. Payne, and Henry C. Rouse, as receivers of the Northern Pacific Railroad Company, against William V. Myers, treasurer of Jefferson County, Mont., to enjoin the collection of a tax. The defendant demurred to the bill.

John C. Spooner and F. M. Dudley, for complainants.
H. J. Haskell, Atty. Gen. of Mont, for defendant.

BEATTY, District Judge. The complainants, as receivers of the Northern Pacific Railroad Company, by this action ask to enjoin the collection of taxes levied by the state of Montana, and in their complaint allege concerning the grant, by act of congress of July 2, 1864, to aid in the construction of the Northern Pacific Railroad, of the odd sections of land within the place limits of the grant, that the company has in all respects performed all the acts devolving upon it; that it desires its patent for the lands in question, and has made its demand upon the government therefor, but has been refused the same for the reason that no mineral lands are included in the grant; that some of the lands in such odd sections may be mineral; that the government is investigating the facts, and will not issue its patent until it shall have determined them; that the company cannot now know or designate the lands it will finally procure title to; that in this condition of the title the defendant, as the authorized officer and agent of the defendant county, has assessed against said company taxes on all the lands in said odd sections, regardless of the fact of their mineral or nonmineral character, and is proceeding to sell them for nonpayment of such taxes, and that such taxation and sale of the lands would cloud the title thereto. Upon the complaint, Judge Knowles of this district issued a temporary restraining order against such threatened sale, and to the complaint the defendant demurs, assigning as causes: First, that the complaint does not state such a cause of action as entitles complainants to the relief prayed; and, second, nonjoinder of necessary parties. The first, being the only ground argued or relied upon, will alone be considered.

Preliminary to the main question is raised another,—that all the lands to which the railroad company may have any claim or title, being in the hands of the receivers of this court, are in custodia legis, and cannot without the consent of the court be sequestrated by any other authority. That property under the direct control of a court can be reached only through the authority of such court has been the law so long that it has become elementary. That the same rule gorerns when the claim against the property is for taxes is fully declared by the supreme court in Re Tyler, 149 U. S. 164–181, 13 Sup. Ct. 785, and cases therein cited. It results that the defendant should have had the consent of this court before proceeding against such lands, and any attempt to seize or sell them without such consent may be restrained.

The important question is whether any of the lands in question are now subject to state taxation. It will be conceded that lands belonging to the government cannot be so taxed, but that they can be when the legal or equitable title shall have passed from the government to some other party, and certainly it must follow that no one can be taxed therefor until such title shall be in him. In whom, therefore, does the title to these lands now rest? In reply to that much has been said of the holdings of courts that the grant was one in praesenti, but such grants become operative from the date of the act, only after the conditions attached are fully complied with. It was by no means an absolute grant of all the land in each odd section within the place limits, for there were excepted from its operation all rights existing, under any law of the United States prior to the "time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land office” and all mineral lands. By many decisions it has been held, under the act in question and other similar acts, that as soon as the donee complied with the conditions of the act the equitable title, at least of all the odd sections, except those portions thereof to which prior rights had attached, passed to him, no reference being made to the mineral exception in the act. But it must be observed that many of such decisions were concerning lands in those jurisdictions where no mineral existed; hence the mineral exception in the statute was not considered. By another line of authorities it was held that mineral lands not actually known to be such at the time the grant became operative passed with the other lands to the donee. Such was the view held by that able jurist the late circuit judge of this circuit, in Railroad Co. v. Barden, 46 Fed. 592; and such was the generally recognized rule until the reversal of that case by the supreme court in 154 U. S. 288, 14 Sup. Ct. 1030. Undoubtedly, under such construction of the act the complainants would have an equitable title to these lands, and they would be subject to taxation; but this recent decision has overturned that construction. Has it not also overturned, or at least put in abeyance, complainants' title to all these lands, and placed them beyond the reach of state taxation? The court, in substance, says, in the Barden Case, that no title to any mineral lands, whether known or unknown as mineral, passes until a patent shall issue; that it is the duty of the land department to investigate the facts, and to withhold patent to all it shall conclude are mineral. The conclusive effect of this decision is that the complainants have now no title to any of these lands; they have no actual control over or use of any; they cannot sell or give title to any; and whatever right or claim they may have is now so fully suspended that they cannot allege any present title. Beyond question, to some of them they will procure title; but to which they do not now know. Some of them are so clearly nonmineral that none can doubt their character; yet it is not complainants' right to determine or act upon that; but, prior to the act of congress of February 26, 1895, it was alone for the department to determine. The supreme court has held that before lands can be taxed the equitable title must have so far passed to the party that nothing more remains to be done but the mere formal act of issuing the patent to him, and, as held in Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 496–505, 10 Sup. Ct. 341, the lands alienated must be distinctly defined, the donee must have the right to the lands, and not be excluded from their enjoyment. This was a case in which the state undertook to tax lands within the indemnity limits claimed by the railroad company in lieu of lands within the place limits which had been otherwise disposed of. The lands being in an agricultural country, the mineral exception in the law was not in question. The court held that all lands in the odd sections within the place limits not previously granted belonged to the railroad company, and could be taxed, but that as to those claimed within the indemnity limits no title passed until the selections made by the railroad had been approved by the secretary of the interior; that, although the company had done all required of it, and was demanding its patents, the secretary had refused to grant them; that his duties requiring him to investigate certain facts were judicial, and not merely ministerial, and that, until he did determine and act, the lands remained the property of the United States; that, while the government had made its promise to convey the lieu lands, yet such promise passed no title or created any legal interest until the department of the interior had performed the required acts; and it concluded that none of the lands claimed by the railroad company within the indemnity limits were subject to taxation. The facts of that case make the principle therein announced applicable to the facts in this case. Here, the mineral lands are excepted from the grant; the railroad has claimed all the lands within the odd sections, has done all by the law required to entitle it to patents, which it has demanded, and which the government has denied, for the reason that some of the lands claimed may be mineral, and says it must first investigate the facts, and that when it shall determine which of the lands are nonmineral it will issue its patent accordingly. This is a judicial question also, and until it is determined the complainants will have no title of any kind to any of the lands in controversy, which must lead us to the conclusion that none of them can now be subject to taxation. If, however, the decision in the Barden Case leaves any doubt that all title of the railroad company is so in abeyance

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