Opinion of the Court.

was had, included taxes to meet allowances for the per diem and mileage of county commissioners, in excess of what the statute authorized. 2. That a large part of the taxes, for the non-payment of which the second sale was had, was based upon items in the ordinances of the city of Chicago, representing as well indebtedness which that city could not, under any circumstances, legally contract, as indebtedness which was in excess of the limit imposed by the State Constitution upon counties, cities, and other municipal corporations. Law v. People, 87 Ill. 385.

These grounds of objection to the title of the defendant were, under the settled law of the State, open for consideration in this suit. Being well founded, the conclusion must be that the sales at which the defendant purchased, and, consequently, the deeds which he received, were ineffectual to defeat the title of the owner of the lot in question. By the decree, the defendant receives all that he is entitled to demand as a condition precedent to his surrender of such title as he acquired by his purchase; indeed, he received more than should have been awarded to him; for, while, as a condition of granting the relief asked, the tax-payer was bound to do equity, and, therefore, should reimburse the purchaser to the extent of all taxes paid by him, whether those for which the property was sold, or those subsequently levied thereon and paid by him, with interest on each sum, Gage v. Busse, 102 Ill. 592; Smith v. Hutchinson, 108 Ill. 668; Peacock v. Carnes, 109 Ill. 100, the defendant seems to have been allowed, in the present case, among other sums, double the amount of the taxes for which the lot was sold. Of this error in the decree the appellees complain, but it cannot be considered upon this appeal by the purchaser at the tax sale; and, perhaps, under the statutes regulating the jurisdiction of this court, it could not have been the subject of a separate appeal by the owner of the lot. We perceive no error in the decree, and it is

Affirmed.

Opinion of the Court.

JONES, Executrix, v. VAN BENTHUYSEN.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

Submitted November 18, 1885.-Decided November 23, 1885.

Jones v. Van Benthuysen, 103 U. S. 87, affirmed.

The facts are stated in the opinion of the court.

Mr. Solicitor-General for plaintiff in error.

Mr. J. D. Rouse and Mr. William Grant for defendant in

error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This was a suit brought by Van Benthuysen, the defendant in error, a commission merchant engaged in the sale of manufactured tobacco, to recover back from Stockdale, a collector of internal revenue, certain taxes paid under protest on the amount of sales of tobacco in a bonded warehouse. The sole controversy is about the liability of the merchant to pay taxes upon the amount of revenue stamps affixed to the tobacco at the time of its removal from the warehouse. The case was here at the October Term, 1880, and is reported in 103 U. S. 87. We then decided that he was "not liable to be taxed for the revenue stamps required to be affixed to the tobacco before the removal thereof from a bonded warehouse, unless they were at the time of such sales so affixed, whereby they entered into the value of the tobacco and formed a part of the price thereof." Under this ruling the judgment of the court below was reversed, and the cause sent back for a new trial. The present writ of error was brought for a review of the judg ment upon the second trial. The bill of exceptions shows that the charge to the jury was almost in the exact language of the opinion of this court construing the law on which the rights of the parties depend, and it covered the whole case.

Affirmed.

Statement of Facts.

LEONARD v. OZARK LAND COMPANY.

LEONARD v. CHATFIELD, Trustee.

ORIGINAL MOTIONS MADE IN CASES PENDING IN THIS COURT ON APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.

Submitted November 16, 1885.-Decided November 23, 1885.

It is settled in this court that injunctions ordered by final decree in equity in the courts below are not vacated by appeal.

The judge in the court below who heard the case is empowered by Equity Rule 93, when allowing an appeal from a final decree granting or dissolving an injunction, to suspend or modify the injunction pending appeal, and upon such terms as may be considered proper.

This was a motion for a modification of the supersedeas, or more properly, perhaps, for a modification of the injunction contained in the decree appealed from. The bill prayed, among other things, for an injunction restraining "the defendant, Leonard, from cutting or removing any trees, logs or timber, or any staves manufactured from any trees or timber, from any of the lands" in controversy. In the decree the defendants were "perpetually enjoined from cutting or removing any timber from said lands." The appeal operated as a supersedeas, it having been taken within sixty days after the disposition of the motion, which was made during the same term, to vacate the decree, and the bond being in the form required for that purpose. The decree was rendered by the judge of the District Court of Arkansas, sitting as circuit judge. The same judge allowed the appeal, and, in doing so, directed that it should "not operate to suspend or affect so much of the decree as enjoins the defendants from cutting or otherwise trespassing on the lands in controversy, or removing staves or timber cut thereon." The appellant moves this court "to vacate so much of the decree of the court below granting an appeal and accepting appeal bond as qualifies the said appeal and prevents the same from superseding the decree

VOL. CXV-30

Argument for the Motion.

rendered for the appellees, and especially so much of the said decree granting said appeal as prevents said appellant, J. W. Leonard, from removing the staves made on the land in controversy before service or entry of the decree in favor of the appellees."

Mr. T. W. Brown for the motion.-I. Does the appeal in these causes operate as a suspension of the entire decree?

"The supersedeas attaches to so much of the final sentence as determines the ultimate rights of the party." Bryan v. Bates, 12 Allen, 213; Nauer v. Thomas, 13 Allen, 574; Fleming v. Clark, 12 Allen, 191, cited by the successful counsel in the Slaughter-House Cases, 10 Wall. 273, 283-4, and recognized by this court. The bills in the cases now under consideration on the motion were filed to remove clouds from the alleged titles of the complainants in the bills. This was the only relief sought by final decree. The bill prayed for the issuance of "a writ of injunction." But this, by the very terms of the pleading, was a preliminary injunction, to stop pendente lite the "cutting of trees and the removing" of "trees, logs or timber or staves." It was no part of the final relief specifically prayed for. This court decided against the motion for restoration of injunction in the Slaughter-House Cases on the ground that the record showed that the status quo existing "just prior to " the final decree of the court from which the appeal was taken had been preserved, and that the court from which appeal had been taken had done nothing since appeal to execute its decree. What the appellant asks is just this and nothing more. The status quo "just prior to the passing of the final decree" was without injunction or restraint on the appellant in the use of the lands in controversy. The injunction or restraint comes alone with the final decree originating with it. The complainants, seeking decree against appellant, looked to this very use to relieve them of the necessity of paying him the tax liens which he had removed from the lands.

The judge below seemed to think that the case of Hovey v. McDonald, 109 U. S. 150, which is cited by him in his opinion

Opinion of the Court.

justifying his decree as to the operation of the supersedeas, supports him and reaffirms the Slaughter-House Cases. It is respectfully submitted that this last case is not in the line of the Slaughter-House Cases. It rested on certain peculiarities of judicial administration of the courts in the District of Columbia, from one of which this appeal was taken. The injunction was preliminary in that case, and was to only continue until further order of the court. It was an injunction obtained as auxiliary to preserve a fund until certain rights could be determined. By the terms of the order granting the injunction it could not be extended beyond the discretion of the court granting it.

It is therefore respectfully submitted that the injunctive part of the decree in these cases is reached by the appeal, and as much superseded as any other part of the decree, and the order of the Circuit Court attempting to except this feature of the decree from the operation of the appeal is most irregular and oppressive. Of course it is to be understood from the context, that the "removing any timber" in the final decree is connected with the "cutting," and refers only to the timber cut after the decree.

II. If, however, the legal effect of the appeal is not a supersedure of the injunctive part of the decree, yet appellant may still ask of this court such an order as to the decree pending the appeal as will relieve the appellant of unnecessary hardship, and will secure the rights of appellees. This power will hardly be denied to this court, especially when the application is for "such measures as may be necessary to preserve the condition of things which existed just prior to the passing of the final decree." This much was conceded by the very able counsel who resisted the motion in the Slaughter-House Cases and recognized by this court. The application of appellant does not extend farther. Rule 93 cannot limit the power of this court in the exercise of the discretion invoked by this motion.

Mr. John B. Jones opposing.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. After stating the facts in the language above reported, he continued: