the cause, or with the right itself which is Southern P. R. Co. v. United States, 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; Delabigarre v. Second Municipality, 3 La. Ann. 230; Slocomb v. de Lizardi, 21 La. Ann. 355, 99 Am. Dec. 740. Slocomb v. De Lizardi, 21 La. Ann. 356. [395] *Mr. Justice Peckham, after stating the stitutes an absolute bar to the prosecution of the second action, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Where the second action between the same parties is upon a different claim or demand, the judgment in the former action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. So, in Davis v. Brown, 94 U. S. 488, 24 L. ed 207, Mr. Justice Field, in delivering the opinion of the court, said, in speaking of a prior judgment: "The judgment is not only conclusive as to what was actually determined respecting such demand, but as to every matter which might have been brought forward and determined respecting it." In New Orleans v. Citizens' Bank, 167 U. The defendant herein in his answer specially set up such judgment, and claimed that under and by virtue thereof the city was concluded from maintaining its action; the state court refused to give effect to the judgment, and the denial of this right was excepted to by the defendant, and was also assigned as error in the state supreme court. In such case we think a Federal question ex-S. at page 396, 42 L. ed. 211, 17 Sup. Ct. Rep. ists. Pittsburgh, C. C. & L. R. Co. v. Long Island Loan & T. Co. 172 U. S. 493, 507, 43 L. ed. 528, 532, 19 Sup. Ct. Rep. 238, and cases there cited; Phoenix F. & M. Ins. Co. v. Tennessee, 161 U. S. 174, 184, 40 L. ed. 660, 664, 16 Sup. Ct. Rep. 471. Whether full faith and credit have been given the judgment of a Federal court by the courts of a state is a Federal question, and that question exists in this case. Upon the merits we have simply to inquire whether the courts below erred in their decision refusing to admit in evidence the judgment in the chancery suit above mentioned. The judgment in that suit was between the city as complainant and Klein as defendant, and it had reference to the proceedings of the marshal in the execution of his writ issued upon the judgment of Klein against the city. The defendant in this suit traces his title back to Lewis, who purchased upon the sale under the marshal's writ, and so when the defendant is sued in this action he stands as privy to one of the parties to the chancery suit and can claim the same rights in the judgment therein as an adjudication, which Lewis or Klein could have claimed if either were in possession of the property, and this suit had been brought against the one in possession. The law in relation to the effect of a judgment between the same parties is well known, but its proper application to particular cases is sometimes quite difficult to determine. The following authorities treat of the subject very fully and exhaustively: Cromwell v. Sac County, 94 U. S. 351, 24 L. ed. 195; Davis v. Brown, 94 U. S. 423, 24 L. ed. 204; New Orleans v. Citizens' Bank, 167 U. S. 371, 42 L. ed. 202, 17 Sup. Ct. Rep. 905; 913, Mr. Justice White, speaking for the To the same effect is Southern P. R. Co. v. The same rule is substantially laid down Now, what was the demand and what was the thing adjudged in the chancery suit between the city of New Orleans and Klein? In that suit the city alleged that Klein had seized under a writ of fieri facias, in his action against the city, certain property which was described in the complainant's bill, which he threatened to sell, and which was advertised to be sold on a certain day, and the city alleged "that the said John Klein has no right to issue the said writ of pluries fieri facias *in said suit, or to cause [398] the seizure, advertisement, and sale of the said property thereunder," and it set forth in its bill the grounds (already stated) for such an allegation. The sole cause of action was the apprehended and threatened sale of the property, which sale, the complainant alleged, would be illegal. All the other facts set up in the bill were but the grounds justifying and proving, as contended, the allegation that Klein had no right to sell the property, and it was this illegality of the threatened sale that was the sole cause or foundation of the action; it was the matter in dispute and the subject of contest. If the property were not legally subject to seizure and sale, then it would clearly be an illegal sale if consummated, and that fact would be material in proof of the cause of action of the city. Upon the trial the court adjudged that defendant had the right to sell the property, and it therefore dissolved the injunction and dismissed the bill, and judgment to that effect was duly signed and entered. This would seem to be a full and complete adjudication upon the right of defendant Klein to sell the property seized under his writ. That right would not exist if the property were not the subject of a legal sale. Whether or not it was thus subject was an inquiry which the court would have had jurisdiction to make had it been alleged in that suit. It is, however, contended that as the city had only set up certain facts as the foundation of its action to prevent the alleged illegal sale of the property, the judgment only bound it as to those facts, and therefore it is now urged that the city in this action was at liberty to prove other facts which would also show that Klein had no right to sell the property, namely, that the property had long before the sale been dedicated to public use, and the city therefore had no right to alienate it, nor had anyone the right to sell it upon an execution issued on a judgment against the city. It is not disputed that, if there were no question of a prior judgment in this case, proof that the land had been properly and duly dedicated for a public square to the public use, and therefore had been withdrawn from commerce, would furnish a defense to the claim by any person of a right to sell the Jproperty under an execution upon a judg ment against the city. New Orleans United States, 10 Pet. 662, 731, 736, 9 L. ed. 573, 600, 602; Police Jury v. Foulhouze, 30 La. Ann. 64; Police Jury v. McCormack, 32 La. Ann. 624; Kline v. Parish of Ascension, 33 La. Ann. 562; Leonard v. Brooklyn, 71 N. Y. 498, 27 Am. Rep. 80. The threatened sale might have been illegal for a number of reasons, based upon widely divergent facts, but whatever those reasons were, the facts upon which they rested were open to proof in the chancery action, and if the city desired the benefit of them, they should have been alleged and proved. It would seem to be quite clear that the plaintiff could not be permitted to prove each independent fact in a separate suit. Suppose the city had only set up the fact of the registry of the judgment as a ground for enjoining the sale, and after a trial on that issue it had been beaten and judgment had gone against it, could the city after that have commenced another suit for the same purpose, and set up as a ground for the alleged illegality of the sale the assignment of the judgment by Klein? In such second action would not the judgment in the prior action conclude the city? If not, then on being beaten on a trial of that issue the city could commence still another action *based on the[400] allegation that the judgment had been paid. Thus, as many different actions as the city might allege grounds for claiming the sale would be illegal could be maintained seriatim, and no one judgment would conclude the city except as to the particular ground upon which the city proceeded in each particular would simply form evidence upon which the And yet all these different grounds original cause of action was based, namely, the alleged illegality of the apprehended sale. which the cause of action might rest. There They would form simply separate facts upon is no difference in the nature of the ground grounds actually set up in the chancery suit. now urged in this case from the other case. thing demanded was an injunction restrainIt is true that in the chancery suit the ing Klein from selling the property, while in this suit it is a decree declaring the sale efBut the two demands, though different in Vfected by Klein absolutely null and void. terms, are in substance the same, and are founded upon the same cause of action, viz., the total illegality of the sale, whether threatened or accomplished. The demand in to the fact that there had been a sale of the the later action is simply altered to conform property, while the demand in the former suit was based upon the fact that there had not been a sale, and the relief demanded substance and effect the thing demanded is was an injunction to prevent such sale. In the same in both cases. Assuming the law to be as thus stated, the question in this case is, What effect has this judgment under discussion upon the rights of the parties? The fact now alleged would have furnished in the chancery suit but another ground or reason upon which to base the claim of the city, that Klein had no right to sell the property under his writ. In other words, it would have been additional proof of the cause of action set forth in that suit. The city would have had the right to set that fact up in its bill and to have proved it on the trial, and, if proved, it would have been foundation for a judgment enjoining the sale of the property; but the fact would have been nothing more than evidence of the right of the city to obtain the injunction asked for in the chancery suit, and we think it was the duty of the city to set up in that suit and to prove any and all grounds that it had to support the allegation that Klein had no right to seize or sell the property. 177 U. S. U. S., Book 44. 52 now urged for the illegality of the sale, It is contended, however, that the ground namely, a long prior dedication of the prop erty to public use, is of a totally different nature from the grounds which were set up in the chancery suit; that the city there ap peared in a different capacity from that in which it now appears, and that it was therefore unnecessary to allege or prove this ground in that suit, and that a judgment in the former suit in favor of the right of Klein to sell this property does not conclude the city from proving that he had no such right by reason of the character of the property sold. Although the city has been more than 821 We think there is no double capacity in this case, and that the city appears in the same character and capacity in both these suits, and that in this suit it is bound by the judgment in the chancery suit. The title to land which has been dedicated to public use, as for a highway or public square in a city, is in the city as trustee for the public, and it has been held, in the case of such a dedication of land in a proposed city, to be thereafter built, that the fee will remain in abeyance until the proper grantee or city comes in esse, when it will vest in such city. A dedication to the public may exist where there is no city or town or corporate entity to take as grantee, and in such case, while the fee may remain in the individual who dedicates the land, he will be estopped from setting it up as against the public who may be interested in the use of the land according to its dedication. Nevertheless, when a dedication is made in an existing city, the city takes title as trustee. These statements are borne out by the follow fifteen years in discovering this defense, yet,, be taken on execution against it, but it nevernevertheless, it is now argued that a judg- theless holds that very property, as trustee. ment against the city in the chancery suit It holds it for the purpose of discharging in 1401]being a judgment against it in a different a general way the duties which it owes to capacity from that in which it appears in the public, that is, to the inhabitants of the this action as a trustee for the public, the city. The citizens or inhabitants of a city, rule applies in such a case as it sometimes not the common council or local legislature, does in the case of a judgment against A B, in constitute the "corporation" of the city. i relation to property held by him as executor Dillon, Mun. Corp. 3d ed. § 40. The corporaor as trustee, which would be no evidence tion, as such, has no human wants to be supfor or against A B in his individual and per- plied. It cannot eat or drink or wear clothsonal capacity. Collins v. Hydorn, 135 N. Y. ing or live in houses. It must as to all its 320, 32 Ñ. E. 69. Although there are excep- property be the representative or trustee of tions even to that rule. Morton v. Pack- somebody or of some aggregation of persons, wood, 3 La. Ann. 167; Fouché v. Harison, 78 and it must therefore hold its property for Ga. 360, 3 S. E. 330. the same use, call that use either public or private. It is a use for the benefit of individuals. A municipal corporation is the trustee of the inhabitants of that corporation, and it holds all its property in a general and substantial, although not in a strictly technical, sense in trust for them. They are the people of the state inhabiting that particular subdivision of its territory, a fluetuating class constantly passing out of the scope of the trust by removal and death and as constantly renewed by fresh accretions of population. The property which a municipal corporation holds is for their use, and is held for their benefit. Any of the property held by a city does not belong to the mayor, or to any or all of the members of the comdividual property. If any of those funcmon council, nor to the common people as intionaries should appropriate the property or its avails to his own use, he would be guilty of embezzlement, and if one of the people not clothed with official station should do the like, he would be guilty of larceny. So we see that whatever property a municipal cor-[403] ing cases: Pawlet v. Clark, 9 Cranch, 292, poration holds, it holds it in trust for its 3 L. ed. 735; Beatty v. Kurtz, 2 Pet. 566, 7 inhabitants, in other words, for the public, L. ed. 521; Cincinnati v. White, 6 Pet. 431, and the only difference in the trust existing 435, 436, 8 L. ed. 452, 455; Barclay v. How in the case of a public highway or a public ell, 6 Pet. 498, 8 L. ed. 477; New Orleans v. United States, 10 Pet. 662, 9 L. ed. 573; Po- square, and other cases, is that in the one case the property cannot be taken in execu. lice Jury v. Foulhouze, 30 La. Ann. 64. Although the city holds property of such tion against the city, while in other cases it nature in trust for the public, that fact does lute in the one case than in the other, but it may be. The right of the city is less absonot distinguish it from the character or caowns all the property in the same capacity pacity in which the city holds its other prop- and character as a corporation, and in trust erty, so as to bring the case within the mean- for the inhabitants thereof. Views similar ing of the rule that a judgment against a to these have been heretofore substantially man as an administrator does not bind him expressed by the late Judge Denio, in speakas an individual. The city holds all prop-ing for the court of appeals of New York in erty which it owns, as trustee for the public, Darlington v. New York, 31 N. Y. 164, 88 although certain classes or kinds of property, Am. Dec. 248. such as the public streets, the public squares, [402]the courthouse, *and the jail, cannot be taken on execution against it, for reasons which are plain to be seen. Such property is so necessary for the present and daily use of the city as the representative of the public, as well as for the use of the public itself, that to allow it to be taken on execution against the city would interfere so substantially with the immediate wants and rights of the public whose trustee the city is, and also with the due performance of the duties which are imposed upon the city by virtue of its incorporation, that it ought not to be tolerated. Other property which the city might hold, not being so situated, might That difference From these considerations we are of opinion that there is no difference in the character of the title by which a municipal corporation holds these two classes of property, but there is simply a difference in the power which such corporation can exercise over its property in the two cases. arises from the peculiar nature of the use of the property, which in the one case requires it to be inalienable and not liable for the debts of the city, while in the other case it is open both to alienation and to sale under execution. In each case the character or capacity in which the city in fact holds the title is the same. We therefore think the former judgment | packages and issue a receipt therefor with should have been admitted in evidence upon a revenue stamp duly canceled, without addthe trial of this action. By that judgment ing the cost of the stamp to the rate charged Reversed. it conclusively appears that this property for transportation. See same case below, 118 Mich. 682, 77 N. was legally sold upon the execution on Klein's judgment and that the purchaser at W. 317. the sale obtained a title which was good. This title the plaintiff in error now owns, and it must prevail against the claim of the city. The judgment of the Supreme Court of Louisiana must be reversed, and the cause remanded to that court for further proceedings not inconsistent with the opinion of this court, and it is so ordered. Mr. Justice McKenna did not hear the argument, and took no part in the decision of this case. Statement by Mr. Justice White: [404]*AMERICAN EXPRESS COMPANY, Plff. certificate authorizing it to carry on an ex in Err., v. FRED A. MAYNARD, Attorney General of (See S. C. Reporter's ed. 404-419.) Mandamus as a suit-Federal question as to construction of act of Congress-war revenue tax-charge by express company for cost of stamp. 1. A proceeding for a mandamus is a "suit" within the meaning of U. S. Rev. Stat. § 709, relating to the jurisdiction of the United States Supreme Court on writ of error to state courts. 2. A question as to the construction to be 8. rates an amount sufficient to cover the cost of the stamp required to be affixed to a receipt [No. 220.] press business in that state, and in order "That by reason of a desire of the respond- Argued November 9, 1899. Decided April cept, and deliver such goods, wares, and 16, 1900. N ERROR to the Supreme Court of the I State of Michigan to review a decision affirming a judgment ordering a mandamus to compel an express company to receive NOTE.-As to Federal jurisdiction over state courts; necessity of Federal question-see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998. As to what is a Federal question; when considered-see note to Re Buchanan, 39 L. ed. U. S. 884. merchandise so offered and tendered to it for that purpose." A number of instances were specified where it was averred the express company on the tender to it of packages for transportation as a common carrier had refused to receive the same and to issue receipts therefor "unless a stamp of the value of one cent was paid or provided" by the shipper. It was charged that the conduct of the express company was in violation of the obligations imposed upon it by the act of Congress in question, and constituted a refusal to perform its duty as a common carrier. The prayer was 823 for a mandamus commanding the company to receive packages for transportation by express, and issue a receipt with stamp duly canceled thereon, without seeking to compel | shippers who might tender packages for carriage either to pay for the one-cent stamp or to provide the means for so doing. tion is involved, and no such question was below decided. The first proposition is not tenable. McPherson v. Blacker, 146 U. S. 1, 24, 36 L. ed. 869, 873, 13 Sup. Ct. Rep. 3; Hartman v. Greenhow, 102 Ú. S. 672, 26 L. ed. 271. The second is likewise without merit. From the summary of the pleadings just made, in the statement of the case, it is apparent that the issue between the parties involved an assertion on the one side that the act of Congress imposed on the express company the absolute duty of furnishing the receipt, of *affixing the stamp thereto, and can- [407] celing the same. The argument was that it was hence a violation of the duty, imposed upon the express company by the act of Congress, for the company either to demand the stamp or the amount thereof from the shipper, and that it was also a violation of the act of Congress for the express company to increase its rates to the extent necessary to accomplish the result of securing the reimbursement of the amount of the one-cent stamp tax. On the other hand, the defense of the express company was that under the act of Congress it had the right, privilege, or immunity (which it specially set up and claimed) of demanding the payment of the one cent or of increasing its rates to the extent that the tax imposed a burden upon it, provided only the rates charged were just and reasonable. The question thus present The answer of the express company admitted that it required persons who tendered packages for carriage, by express, either to pay or provide the means for defraying the cost of the one-cent stamp, but denied that its conduct in so doing was a violation of the act of Congress by which the one-cent tax on express receipts was imposed. On the contrary, it was averred that the act of Congress, when properly construed, although imposing the absolute duty to issue a receipt for every package as therein provided, left the question of who should pay for the stamp free for adjustment between the shipper and the express company. By the act of Congress, it was asserted, the express company had, therefore, the right or privilege of insisting that those who offered packages to be carried by express should either furnish the one-cent stamp or provide the means [406]of paying *for it. It was, moreover, alleged that the company had in effect but increased its rates on each shipment by adding to the previous rates the sum of the stamp tax. And it was averred that this increase the company was not forbidden to make, by the act of Congress imposing the one-cent stamped was in substance the only one decided by tax, and that the rate as increased by ex- the supreme court of the state. In stating acting that the one-cent stamp should be the issues arising for its decision, the court furnished or that its value be paid for by said: "The main question in the case rethe shipper was just and reasonable, and lates to the construction to be placed upon was not in conflict with the act of Congress. the act in question," that is, the act of ConThe answer was in effect demurred to as not gress. After a review of the provisions of stating a defense. The case was submitted the statute it was decided that under it the for decision on petition and answer. The express company could not in any event or court ordered the mandamus to issue sub- by any means transfer the burden of the stantially as prayed for. The cause was tax in question. Considering the right of then removed by writ of certiorari to the the express company to increase its rates to supreme court of the state of Michigan, the extent necessary to secure the payment where the judgment of the trial court was of the tax by the shipper, the court said: affirmed. 118 Mich. 682, 77 N. W. 317. "It is contended, however, that the comBy an allowance of a writ of error the judg-pany has the right to make new regulations ment of the supreme court of this state is and establish new rates to meet all this burbefore us for review. Mr. Lewis Cass Ledyard argued the cause and filed a brief for plaintiff in error. Mr. C. E. Warner argued the cause and filed a brief for defendants in error. Contentions of counsel sufficiently appear in the opinion. [406] *Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: We will first dispose of the claim that this court is without jurisdiction to review the judgment, and that hence the writ of error should be dismissed. The contention is based upon the following: (1) That the proceeding below, being for a mandamus, was not a "suit" within the meaning of that term as employed in § 709 of the Revised Statutes; and (2) because no Federal ques den. It is contended that the effect of this is to throw the burden upon the shipper. It is apparent upon the face of this proceeding that the very purpose of this change in the regulations and the increase of rates is to avoid the payment of the tax and thus act of Congress puts upon the company. cast upon the shipper the burden which the This is but an evasion and a subterfuge to avoid the terms of the act." The foregoing reasoning was supplemented by comment upon the fact that the increase of rate resulting from the charge of one cent on each package was made without reference to the distance each package was to be carried. We do not, however, understand the remarks on this subject as implying that the court below decided that the rate as in-[408] creased by the one cent was intrinsically unreasonable without regard to the provisions of the act of Congress, but only that the rate as so increased was unreasonable, because |