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Opinion of the Court.

the road. Knowing the title under which the Indians held this territory, the company should, when it contemplated the construction of the road, have obtained some positive assurances from the Indians that they would permit the road to be built. It seems that by treaties made in 1866 with the Seminoles, the Choctaws and Chickasaws, the Creeks, the Delawares and the Cherokees, 14 Stat. 755–799, provision was made for a right of way for certain railways from north to south, and from east to west, through the Indian Territory; but the very fact that these treaties made no provision for a grant of lands to the railways through this Territory as appurtenant to their line of road was notice to the companies that no such grant was contemplated. Indeed, these very treaties made additional provisions for the exercise of legislative power by the several Indian nations, and contained additional guaranties for their legislative independence and self-government guaranties quite inconsistent with a grant to the railway of alternate sections of land forty miles in width, and the opening of the other alternate sections to purchase as public lands. All of these treaties were entered into prior to the land grant act of July 27, 1866, and both parties must have had them in view at that time.

4. The defence that other reservations were made to these Indians after this act was passed stands upon a somewhat different basis. So far as these Indian reservations were in the Indian Territory they are immaterial, since we have

ready held that lands in that Territory did not pass, and it could make no difference whether they were reserved for one tribe or another. Of the reservations in New Mexico and Arizona most of them were made after July 4, 1878, the time fixed for the completion of the road, and at a time when the Government had a right to declare the grant forfeited. All these reservations, too, were made opposite portions of the road which were actually built, and cannot be made available as an excuse for not completing the other portions. None of them seem to affect in any way the lands coterminous with the unconstructed portion. There was no restriction upon the right of the Government to dispose of public lands in any way

Opinion of the Court.

it saw fit prior to the filing of the map of definite location; and if it assumed to dispose of lands within the grant, after the rights of the railroad company had attached, such action might be void, but it would be no answer to the obligation of the company to complete its road within the stipulated time. Some of these reservations, too, were made in pursuance of treaties made with the Indians prior to the land grant act, and were apparently made in pursuance of a plan to confine the Indians within designated boundaries of territories previously occupied by them. These reservations did not seem to have seriously interfered with the company in the prosecution of its work, or, with the exception of those in the Indian Territory, to have been seriously insisted upon as an answer to the proposed forfeiture of its land grant.

5. It is finally contended that the Government failed to fulfil its obligation to survey the lands, and that this was a condition precedent to its right to declare a forfeiture. This obligation is contained in the sixth section in the following language: "That the President of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad." Evidently the failure to do this did not prevent the company from realizing the full value of the land granted by mortgaging the road, and it is open to doubt whether it could, under any circumstances, be insisted upon as a defence to the forfeiture. It is true that the railroad company offered to furnish the money for such surveys, and that the United States refused to accept it; but such offer was not made until 1881, three years after the time stipulated for the completion of the road, and at a time when the Government had a right to treat the land grant as forfeited, although the act of forfeiture was not passed for five years thereafter.

Upon the whole it does not seem to us that Congress exceeded its powers in forfeiting this grant. The plaintiff company seems to have undertaken its great enterprise in building a transcontinental railroad without adequate appreciation of

Opinion of the Court.

the difficulties to be surmounted, which finally caused a total suspension of its work; and, when in 1880, after the panic of 1873 had spent its force, it resumed operations, the time had already expired for the completion of the road, and it was only by the inaction or indulgence of Congress that it was permitted to proceed. So far as the road was built and accepted by the Government after that time, it was probably entitled to receive its appropriate land grant, but this was rather a matter of favor than of strict right. During this long period, from 1871 to 1880, it should, under its charter, have constructed at least fifty miles per year, and should have completed the whole road by July 1, 1878. But it did nothing. After this long inaction of nine years and its practical abandonment of the work, the company was not in a position to demand of the Government a strict and literal performance of its obligations when it had so completely failed to meet its own. While the reservation of some of these lands for the benefit of the Indian tribes might not have been consistent with its obligations to extinguish Indian titles, if the company had been prosecuting its work according to its contract, we do not think that it is entitled to complain that the Government did not deal with it precisely as if it lived up to its undertaking.

The judgment of the court below must, therefore, be


MR. JUSTICE GRAY was not present at the argument and took no part in the decision of this case.

Statement of the Case.

In re CHETWOOD, Petitioner.


No. 7, Original. Argued January 11, 1897. - Decided February 15, 1897.

A writ of error from this court removes a cause from a Circuit Court to this court, and it is then for this court to determine whether it may entertain jur tion of the cause remov and to dispose of controversies in respect of the form of the writ, the parties, and the citation and service, without interference from any other court.

A receiver of a national bank, appointed by the Comptroller of the Currency in pursuance of law, acts under the control of the officer appointing him, and does not, by application to the proper court touching a sale of personal property of the bank, become an officer of that court, or place the assets of the bank within its control.

When a state court has acquired jurisdiction of an action or suit to recover moneys alleged to be due a national bank, in the hands of a receiver, the receiver's subsequent discharge and the substitution of an agent in his place by the act of the stockholders does not oust it.

Where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court.

Where property is in the possession of a court of competent jurisdiction, that possession cannot be disturbed by process out of another court of concurrent jurisdiction.

Under the circumstances set forth in the statement of the case, and in the opinion of the court, it is clear that the Circuit Court of the United States for the Northern District California could not restrain the prosecution of his suit in the state courts by the petitioner, and, if Federal questions arose, it could not prevent this court, or à justice thereof, or the presiding judge of the state court, from granting writs of error, by restraining the parties from applying therefor; nor could it properly direct their dismissal, having been granted.

This court may issue writs of certiorari in all proper cases, and will do so when the circumstances imperatively demand that form of interposition, to correct excesses of jurisdiction, and in furtherance of justice.

THIS is a petition for the vacating of or prohibition upon certain orders of the Circuit Court of the United States for the Northern District of California in the suit of Stateler v. The California National Bank of San Francisco et al., enjoining (as was held) the bank and John Chetwood, Jr., from

Statement of the Case.

prosecuting a writ of error from this court in the name of the bank as plaintiff in error; directing Chetwood to dismiss a second writ of error from this court; and punishing Chetwood and E. G. Knapp, of counsel, as for a contempt of the Circuit Court in suing out said writs of error. Leave was granted to file the petition, and a rule to show cause was entered thereon, to which return was made.

The facts necessary to be considered appear to be as follows:

In October, 1886, the California National Bank of San Francisco was organized under the national banking laws with a paid up capital stock of $200,000, and petitioner became and remains a stockholder therein. In December, 1888, the bank became insolvent, and the Comptroller of the Currency on January 14, 1889, appointed one S. P. Young receiver thereof.

July 19, 1890, petitioner began his suit in equity in the Superior Court of the city and county of San Francisco against the bank, Richard P. Thomas, Robert R. Thompson, Richard A. Wilson, and S. P. Young as receiver, "and therein and thereby, on behalf of said bank and himself as a representative stockholder therein, specially set up and claimed the right to hold said defendants Thomas, Thompson and Wilson, as officers and trustees and directors of said bank, accountable to it in equity, under and in pursuance of the statutes and laws of the United States, for sundry breaches of their trust as such officers, directors and trustees," etc.

Thomas was the president, and with Thompson and Wilson formed the executive committee of the board of directors of the bank. The complaint set forth the by-laws with respect to the separate duties and liabilities of the president and said executive committee, and charged gross negligence against each of them in discharge thereof, whereby the bank through the fraudulent acts of its cashier in making excessive and unsecured loans and advances was rendered insolvent; and plaintiff prayed a “joint and several money judgment against them, the said Richard P. Thomas, Robert R. Thompson and Richard A. Wilson, for the sum of $400,000, with legal inter

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