if the objection is overruled by the board, and he does not consent to the assessment as finally determined, such objection shall, without further proceeding, be regarded as appealed to the district court, and shall there again be heard in proceedings to confirm the assessment. It is expressly provided that upon such hearing the court shall disregard every error. irregularity, or omission which does not affect the substantial rights of any party, and shall correct any error which may be found in such assessment, or any injustice which may result from it. Messrs. Edmund H. Dryer and Forney Johnston, both of Birmingham, Ala., for petitioner. Mr. Lawrence Maxwell, of Cincinnati, Ohio, for respondent. *Mr. Justice DAY delivered the opinion of the court. The plaintiff, as receiver of the Alabama Trust & Savings Company, a banking corporation organized under the laws of the state of Alabama, filed his bill in the United States District Court for the Southern District of Ohio, against the Second National Bank of Cincinnati to recover sums of money for which he alleged the Second National Bank was liable on account of certain transactions which had taken place between the National Bank and the Savings Company and its officers the details of which it is unnecessary to set forth. Upon final hearing the District Court found the defendant liable for the application of a balance of the Savings Company's deposit in the National Bank, upon paper held by it on which the Savings Company appeared as principal maker, but which was found to have been given for the (248 U. S. 73) benefit of certain of the Savings Company's STERRETT v. SECOND NAT. BANK OF officers. Plaintiff's remaining claims were For this reason the court held that the claims stated in the "cross-complaint" were prematurely asserted, were "wholly immaterial" to the inquiry presented by the petition of the district, and "should have been stricken from the answer." We cannot doubt that this conclusion of the state Supreme Court, based as it is wholly on state statutes and procedure, is broad enough to sustain the judgment rendered, irrespective of the disposition of any federal question involved, and therefore the writ of error will be dismissed. CINCINNATI, OHIO. rejected. Both parties appealed to the Cir(Argued Nov. 8, 1918. Decided Dec. 9, 1918.) cuit Court of Appeals for the Sixth Circuit, No. 378. 1. RECEIVERS 210-SUIT IN FOREIGN JU RISDICTION. It is settled doctrine in federal jurisprudence that a chancery receiver has no authority to sue in the courts of a foreign jurisdiction to recover demands or property situated therein; his functions and authority being confined to the jurisdiction of his appointment, and the practice permitting application for ancillary receivership in a foreign jurisdiction where local assets may be recovered, and, if necessary, administered. 2. COURTS 96(1)—FEDERAL RULE-CHANGE. The contrary rule having become the settled law of the federal courts, if the powers of chancery receivers are to be enlarged to give them authority to sue beyond the jurisdiction of the appointing court, such extension of authority must come from legislation, not from judicial action. 3. RECEIVERS 210-AUTHORITY TO SUE IN FOREIGN JURISDICTION. In view of Code Ala. 1907, §§ 3509, 3511, 3512, 3560, Alabama receiver of a banking cor poration held not vested with title to its assets as assignee or statutory successor so as to authorize him to sue for their recovery in a foreign federal jurisdiction. Writ of Certiorari to the United States Circuit Court of Appeals for the Sixth Circuit. Suit by W. C. Sterrett, as receiver of the Alabama Trust & Savings Company, against the Second National Bank of Cincinnati, Ohio. From the decree of the District Court, both parties appealed to the Circuit Court of Appeals, which reversed (246 Fed. 753, 159 C. C. A. 55), and plaintiff petitions for certiorari. Decree of the Circuit Court of Appeals affirmed. which reversed the decree of the District Court, upon the ground that the receiver had no authority to bring the suit (246 Fed. 753, 159 C. C. A. 55), and the case is here on writ of certiorari to the Circuit Court of Appeals. In the year 1911 certain creditors of the Savings Company, an Alabama corporation, filed a bill against it in a chancery court of Alabama alleging its insolvency. The chancery court on April 27, 1911, rendered a final administration decree wherein it found that the defendant Savings Company was insolvent; that its assets constituted a trust fund for the payment of its creditors, and the same should be marshaled and administered in that court; that the defendant was a corporation organized under the General Laws of Alabama; that upon final settlement it should be dissolved; that' it had suspended business and was not about to resume the same, and could not do so with safety to the public; that, therefore, W. C. Sterrett be appointed receiver of defendant, and empowered and directed to demand and take into his possession all of the defendant's assets and property to which it was entitled and to recover the same and reduce it to money, and administer the same under the further order of the court. And the court further authorized the receiver to employ counsel and to bring such actions at law or in equity as he might be advised and to incur such expenses as might be necessary. Later, on March 8, 1912, the Alabama chan For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes #76 cery court specifically directed the receiver, later decisions of this court. Section 3511 provides for the dissolution of corporations by action of the stockholders, and enacts that the court shall appoint a receiver of all the books, property, and assets of the corporation * * (who) shall, under the direction of the court, collect all debts due the corporation, and sell all the property, real and personal, of the corporation, pay the debts thereof ratably or in full as the funds realized may admit, and divide the residue after the debts and costs are paid, among the several classes of stockholders, according to the amount owned by each, and according to the preferences, if any, of the several classes as provided in the certificates of incorporation." *Section 3512 covers the application for receivership and dissolution of insolvent corporations upon bill of creditors or stockholders in the chancery court, and provides: The court may appoint a receiver of all the property and assets of the corporation (who) under the direction of the court, must exercise the same powers and perform the same duties as are required of receivers in the next preceding section, and otherwise manage the affairs of the corporation pending final settlement thereof as the court shall direct. * * * * * Hale v. Allin son, 188 U. S. 56, 23 Sup. Ct. 244, 47 L. Ed. 380; Great Western Mining & Manufacturing Co. v. Harris, 198 U. S. 561, 575, 577, 25 Sup. Ct. 770, 49 L. Ed. 1163; Keatley v. Furey, 226 U. S. 399, 403, 33 Sup. Ct. 121, 57 L. Ed. 273. This practice has become general in the courts of the United States, and is a system well understood and followed. It permits an application for an ancillary receivership in a foreign jurisdiction where the local assets may be recovered and, if necessary, administered. The system established in Booth v. Clark has become the settled law of the federal courts, and, if the powers of chancery receivers are to be enlarged in such wise as to give them authority to sue beyond the jurisdiction of the appointing court, such extension of authority must come from legislation and not from judicial action. Great Western Mining & Manufacturing Co. v. Harris, supra, 198 U. S. page 577, 25 Sup. Ct. 770, 49 L. Ed. 1163. [3] Counsel for petitioner insists that the case is not ruled by the doctrine of Booth v. Clark, and that under the Alabama statutes and the decisions of the Supreme Court of that state the title to the property of the Trust Company is vested in the receiver in such wise that he is authorized to sue for its recovery in the courts of a foreign jurisdiction. If this contention is well founded there is no question of the authority of the receiver to prosecute the action. Relfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337; Hawkins v. Glenn, 131 U. S. 319, 9 Sup. Ct. 739, 33 L. Ed. 184; Bernheimer v. Converse, 206 U. S. 516, 534, 27 Sup. Ct. 755, 51 L. Ed. "3560. Proceedings when bank found not sol-1163; Converse v. Hamilton, 224 U. S. 243, vent-Whenever the treasurer finds that a bank 257, 32 Sup. Ct. 415, 56 L. Ed. 749, Ann. Cas. or corporation chartered by the laws of this 1913D, 1292; Keatley v. Furey, 226 U. S. state and doing a banking business, is not in a solvent condition, he shall immediately report 399, 403, 33 Sup. Ct. 121, 57 L. Ed. 273. the condition of the bank to the governor, and the governor shall direct the attorney general to institute proceedings in a court having jurisdiction in the county where the bank or parent bank is located, to put the bank in the hands of some competent person, who shall give bond in an amount to be fixed by the judge for the faithful discharge of his duties, and said person so appointed shall immediately take charge of the business of said bank, collecting its assets and paying off its liabilities under the law and There is also a provision for proceedings by the attorney general (page 444): rules of such court." The question presented for our consideration is whether the receiver appointed in the chancery court is authorized to sue in the federal court for the recovery of such property. The Alabama cases, Oates v. Smith, 176 Ala. 39, 57 South. 438; Montgomery Bank & Trust Co. v. Walker, 181 Ala. 368, 61 South. 951; Cobbs, Receiver, v. Vizard Investment Co., 182 Ala. 372, 62 South. 730, Ann. Cas. 1915D, 801; Coffey v. Gay, 191 Ala. 137, 67 South. 681, L. R. A. 1915D, 802; Hundley v. Hewitt, 195 Ala. 647, 71 South. 419-are fully reviewed in the opinion of the Circuit Court of Appeals. To rehearse them now would be but a repetition of what is said in that opinion. *An examination of the sections of the statutes, here involved, in the light of the decisions of the Supreme Court of Alabama, does not in our opinion warrant the conclusion that title is vested in the receiver as assignee or as statutory successor of the insolvent corporation in such wise as to authorize the action to recover in a foreign [1, 2] Since the decision of this court in Booth v. Clark, 17 How. 322, 15 L. Ed. 164, it is the settled doctrine in federal jurisprudence that a chancery receiver has no authority to sue in the courts of a foreign jurisdiction to recover demands or property therein situated. The functions and author-jurisdiction. Collectively, these sections proity of such receiver are confined to the jurisdiction in which he was appointed. The reasons for this rule were fully discussed in Booth v. Clark and have been reiterated in vide for a receivership to administer the property and assets of the insolvent corporation under the authority and direction of the appointing court. The statutes do not un $78 dertake to vest in the receiver an estate in [property on subscription without a license, the property to be administered for the ben- which may be had on payment of specified efit of creditors as was the case in Bern- fees. The plaintiff in error argues that the heimer v. Converse, supra, and Converse v. application of this law should be determined Hamilton, supra, in which the right to sue by the general course of business, not by an in the courts of a foreign jurisdiction was isolated transaction, and the argument has sustained. force. It depends, however, on the construction of the ordinance, and as the State Court has construed it to apply to and forbid the act proved, the judgment must be affirmed. Judgment affirmed. The Circuit Court of Appeals left open the question of the right to apply for an ancillary receivership in the District Court, and the effect of such appointment, if made, upon the pending suit. We pursue the like course, and as such an application could only originate in the District Court we express VAN DYKE et al. v. ARIZONA EASTERN no opinion concerning it. The decree of the Circuit Court of Appeals is affirmed. (248 U. S. 65) WATTERS v. PEOPLE OF STATE OF MICHIGAN. R. CO. (248 U. S. 49) (Argued Nov. 19, 1918. Decided Dec. 9, 1918.) No. 59. 1. PUBLIC LANDS 92-LOCATION OF RIGHT OF WAY UNDER FEDERAL ACT. Definite location by railroad of right of way under Act Cong. March 3, 1875 (Comp. St. 1916. (Submitted Nov. 19, 1918. Decided Dec. 9, §§ 4921-4926), occurs by actual construction of road. 1918.) No. 58. COURTS 366(6) FEDERAL COURTS FOL- The state court having construed an ordinance declaring it unlawful to engage in peddling any goods without a license to apply to an isolated transaction, a sale of two small articles at rest in the state before the sale, though defendant's business was otherwise interstate commerce, judgment of state court must be affirmed. In Error to the Supreme Court of the State of Michigan. Harvey Watters was convicted of peddling without a license. Judgment of conviction was affirmed by the Supreme Court of Michigan (192 Mich. 462, 158 N. W. 865), and defendant brings error. Affirmed. 2. PUBLIC LANDS 92-LOCATION OF RAILROAD RIGHT OF WAY-FOREST RESERVATION -DISCRETION OF SECRETARY OF INTERIOR. Under Act Cong. March 3, 1875 (Comp. St. 1916, §§ 4921-4926) and Act March 3, 1899 (Comp. St. 1916, § 4945), railroad which platted line across public lands, filing in local land office map of definite location some months after land was incorporated in forest reserve, held to have acquired part of land involved, as against homesteader, despite change in right of way, as constructed, from filed map; Secretary of Interior having given permission to enter reserve and approved map. 3. PUBLIC LANDS 92-LOCATION OF RAILROAD'S RIGHT OF WAY-ULTRA VIRES RIGHT TO OBJECT. Homesteaders of lands in forest reserve claimed by railroad as within right of way un der Act Cong. March 3, 1875 (Comp. St. 1916, §§ 4921-4926) and Act March 3, 1899 (Comp. St. 1916, § 4945), could not object, as against Mr. Maurice B. Dean, of New York City, railroad, that it was beyond its charter powers for plaintiff in error. to construct line involved, that being matter for Secretary of Interior when granting permission *Mr. Justice HOLMES delivered the opin- tion to railroad entitling them to complain. to locate line, while homesteaders had no relaion of the Court. The plaintiff in error was complained of for having engaged in peddling goods and having canvassed and taken orders from house to house for the sale of goods in the city of Munising, Michigan, without having received a license as required, by a city ordinance. It may be assumed that much the greater part of his business was interstate commerce and free from any obligation that the ordinance imposed. But in the course of his business he did sell two cans of toilet cream that were at rest in the state before the sale, and it is admitted that this transaction was not protected from state legislation. Bacon v. Illinois, 227 U. S. 504, 33 Sup. Ct. 299, 57 L. Ed. 615. On this ground the Supreme Court of the State sustained a conviction and fine. People v. Watters, 192 Mich. 462, 158 N. W. 865. The ordinance makes it unlawful to engage in peddling any goods or to canvass from house to house for the sale of In Error to the Supreme Court of the State of Arizona. Action by the Arizona Eastern Railroad Company against Cleve W. Van Dyke and fendants appealed to the Supreme Court of others. From judgment for plaintiff, deArizona, which affirmed (18 Ariz. 220, 157 Pac. 1019), and defendants bring error. Judgment affirmed. Messrs. Richard E. Sloan, of Phoenix, Ariz., and William C. Prentiss, of Washington, D. C., for plaintiffs in error. Messrs. Charles L. Rawlins, of Globe, Ariz., and Eugene S. Ives, of Tucson, Ariz., for defendant in error. *Mr. Justice MCKENNA delivered the opinion of the Court. Error to review a judgment of affirmance of a judgment rendered in the Superior Court of Gila County, Arizona, quieting the title of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the Railroad Company to 2.23 acres of land in the N. W. 4 of the S. E. 4, Sec. 30, T. 1 N., R. 15, E., Gila County Arizona. its amended map and profile of its right of way in the local land office which was regularly and duly approved March 4, 1911. The trial court made findings of fact which Van Dyke attempted to show that he had were concurred in by the Supreme Court. established residence upon the land prior to 18 Ariz. 220, 157 Pac. 1019. And we see no December 22, 1909, the date upon which he reason for not accepting them, notwithstand-filed his homestead entry. But it is clear that ing plaintiffs in error urge a review of them. he did not go upon the land prior to its incluThey are as follows: The railroad, as the successor of the Gila Valley Globe & Northern Railway Company, acquired its rights, including rights of way and all other assets. In March, 1906, the latter company platted a line of railroad from Globe to Miami, Arizona, about nine miles in length, passing over and across certain public land, and, November 5, 1908, filed in the local land office its map or profile of definite location as provided by the Act of Congress of March 3, 1875. Prior to that time the land covered by the map as well as the land in dispute was thrown into the Crook National Forest Reserve. April 16, 1909, written application to the United States Department of Agriculture, Forest Service, with map of right of way attached, was made by the railroad to enter and extend its line across a portion of the forest reserve. The railroad was given permission on July 6, 1909, to enter the reservation and to locate and construct its road therein. The map and profile of its road was approved September 21, 1909, by the Secretary of the Interior in accordance with the act of Congress. In April, 1909, the Globe Company commenced the construction of its road and completed it in September of that year, and it and the appellee company have operated trains ever since October, 1909. Before construction was commenced, to wit, in November and December, 1908, *the Globe Company amended its line of survey and changed the course of its road upon and across the land in dispute and along its entire length to the extent of 100 feet in width on each side of the center line of its railroad and constructed its road on the amended location conforming on the ground to the staked and marked line. At the time of the amended location the land was held by the Miami Land & Improvement Company, a corporation, as mineral land and the Globe Company accepted a deed from it to a right of way across the land. By executive order the land in dispute was restored to the public domain December 22, 1909, on which date appellant, Cleve Van Dyke, filed upon the same under the homestead law. He had theretofore accepted it under an option to purchase as a mineral location from the Miami Improvement Company. On that date he went off the land, but immediately returned and established his residence with a view to homesteading. In due course he made final proof and on February 12, 1912, a patent without any reservation was issued to him for his homestead. December 30, 1909, the Globe Company filed sion in the Forest Reserve. He was upon the land under the option to purchase mentioned and he attempted to show that he was there under a verbal permit from the Forest Supervisor with the intention of entering the land as a homestead and that he made application to the Forestry Department for an examination and listing thereof under the Act of June 11, 1906; application, however, was rejected. *That he did not rely upon the settlement prior to December 22, 1909, is clearly shown by his testimony. He said: "It is a fact that about midnight on the 22d of December, 1909, I took up residence in the ground and back on again at midnight." house testified to. That is, I went off the December 22d was the first time the land could have been settled upon without permission from the national government, and this permission he did not obtain. Upon these facts the Supreme Court said certain contentions arose: (1) It is that of the railroad that its rights were fixed and established in August and September, 1909, when it completed the construction of its railroad. (2) Opposing, plaintiffs in error assert that because the railroad changed its route as located by its original map and profile approved by the Secretary of the Interior it acquired no rights until it filed with the local land office on December 30, 1909, its amended map of location, which was too late; Van Dyke having taken the land as a homestead December 22, 1909. And to the contention of the company that if the land was public it was not bound to follow the line as shown on its map and profile, plaintiffs in error reply that the land had ceased to be public land by being thrown into the National Forest Reserve and that the railroad was hence restricted to the specific right of way shown on its approved map and profile; or, if changed to another and different route, the consent of the Interior Department was necessary and that such permission had not been given and hence the railroad acquired no rights, at least against plaintiffs in error. conceded, however, that the railroad company was entitled to a right of way to the of its line of track acquired by deed from the Miami Land & Improvement Company, It is extent of 50 feet on each side of the center in the execution of which deed Van Dyke "acquiesced." Therefore, as said by the Supreme Court: of the track, or one hundred feet of the right "Fifty feet on each side of the center line of way, are not involved in this suit. The area in question being the excess of one hundred feet up to two hundred feet, amounting to 2.23 | the Secretary of the Interior pursuant to acres." [1] We have had occasion to consider the Act of March 3, 1875, c. 152, 18 Stat. 482 (Comp. St. 1916, §§ 4921-4926), and what constituted a definite location of the right of way under it, and have decided that such event occurs by the actual construction of the road. Jamestown & Northern Railroad Co. v. Jones, 177 U. S. 125, 20 Sup. Ct. 568, 44 L. Ed. 698; Minneapolis, etc., Ry. Co. v. Doughty, 208 U. S. 251, 28 Sup. Ct. 291, 52 L. Ed. 474; Stalker v. Oregon Short Line, 225 U. S. 142, 32 Sup. Ct. 636, 56 L. Ed. 1027. [2] It was found by the courts below that the construction of the railroad was commenced in April, 1909, and completed September, 1909, and that trains have been operated on it ever since. This satisfies the condition expressed in the cited cases of the appropriation of a right of way. But it is objected that the land was not then subject to appropriation, being within a Forest Reserve. In reply the Act of Congress of March 3, 1899, c. 427, 30 Stat. 1233 (Comp. St. 1916, § 4945), is adduced. It reads as follows: "That in the form provided by existing law the Secretary of the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment the public interests will not be injuriously affected thereby." Of this act we said, in Chicago, Milwaukee & St. Paul Ry. v. United States, 244 U. S. 351, 357, 358, 37 Sup. Ct. 625, 61 L. Ed. 1184, that it commits to the Secretary of the Interior the question of determining whether the public will be injuriously affect ed by the grant of a right of way to a railroad through a forest reserve and authorizes him to file and approve surveys and plats of the right of way. The measure of his discretion is large and only through his approval can a right of way be acquired. The condition was satisfied in this case. The Globe Company-to the rights of which defendant in error *succeeded-in 1906, in preparation for the construction of its road, platted its road and filed in the local land office its map and profile of definite location under the Act of 1875, in November, 1908. Several months prior to the latter date the land of the platted line and the land in dispute were thrown into the Crook National Forest Reserve. In the following year the railroad company made application to the Commissioner of the General Land Office for permission to enter the reserve and to locate and construct its road thereon. And the application was communicated to the Department of Agriculture and approved by the Acting District Forester; the permission was granted and the map and profile of the road was approved September 21, 1909, by the Act of Congress of March 3, 1875. The road was constructed, and, as we have said, completed in September, 1909, and put in operation in October. And these successive steps were before the date on which Van Dyke attempted to initiate a homestead right. The discretion of the Secretary of the Interior was therefore exercised, and we agree with the Supreme Court that we cannot infer a rule of the Department which precluded the granting of permission upon the original map and profile. [3] Plaintiffs in error contend that the railroad company had no power to construct a road from Globe to Miami, Arizona, because its charter failed to designate such a line as within the project for which it was incorporated. This was made an issue by the pleadings and the court found against it. Besides, it is not within the province of plaintiffs in error to make the objection; it was a matter for the Secretary of the Interior to determine. And, again, plaintiffs in error have not such relation to the railroad company as to complain of the exercise of power outside of its charter. Judgment affirmed. (248 U. S. 151) MacMATH v. UNITED STATES. (Argued and Submitted Nov. 22, 1918. Decided Dec. 9, 1918.) No. 79. 1. OFFICERS 94 CREATION OF SALARIED OFFICE-RIGHT TO COMPENSATION. When an office with a fixed salary has been created by statute, and a person duly appointed he is entitled, during incumbency, to be paid to it has qualified and entered upon his duties, salary prescribed by statute, and effect will not be given to any attempt to deprive him thereof, whether by unauthorized agreement, by condition, or otherwise. 2. CUSTOMS DUTIES 60-SUBORDINATE_OF FICERS-CLAIM OF WIDOW OF CLERK-SAL- Widow of one originally appointed assistant weigher of customs, statutes not providing for clerk, class 3, new office, to act as acting United such assistants, later appointed by collector States weigher, and still later appointed clerk, class 4, could not recover from United States salary of her deceased husband as United States weigher of customs from time of appointment as clerk, class 3, up to his death, though he performed some or all duties of weigher. Appeal from the Court of Claims. Action against the United States by Jessie McCarthy MacMath, administratrix. From judgment of the Court of Claims dismissing the petition (51 Ct. Cl. 356), petitioner appeals. Affirmed. Messrs. William E. Russell, of New York City, and L. T. Michener, of Washington, D. C., for appellant. Mr. Assistant Attorney General Thomp son, for the United States. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |