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shares were simply an interest in the very claims the same benefit of the objection as if property held by the corporation, and the he had not demurred to the relief so sought.” assessment of all the property of the cor- Even if it had not been formally pleaded, poration covered everything represented by the matter is one which this court of its the certificate." [142 Cal. 282, 64 L. R. A. own motion would consider and determine. 920, 100 Am. St. Rep. 135, 75 Pac. 835.) As said in Wright v. Ellison, 1 Wall. 16, There is neither allegation nor evidence that 22, 17 L. ed. 555, 557 : there was any overvaluation of the plain- "But this is a suit in equity. The rules tiff's shares of stock. The complaint is that of equity are as fixed as those of law, and there was a discrimination by reason of the this court can no more depart from the failure to deduct from the value of the former than the latter. Unless the comshares the entire value of the bank's tangible plainant has shown a right to relief in property, because "used and employed by it equity, however clear his rights at law, he in the conduct and carrying on its business can have no redress in this proceeding. In as a national banking association.” And such cases the adverse party has a constiyet, in the face of the plain words of the tutional right to a trial by jury. The obConstitution and statutes, the clear lan-jection is one which, though not raised by guage of the supreme court of California, the pleadings nor suggested by counsel, this and the absence of allegation or proof of ac- court is bound to recognize and enforce.” tual discrimination, this court, by its opin- It is unnecessary to cite the many cases ion, strikes down the whole system of Cali- in this court in which this rule has been fornia for the taxation of shares of national recognized, the latest being Scottish Union banks.

& Nat. Ins. Co. v. Bowland, the opinion in But beyond and aside from the matters which has just been filed though reference which I have considered, and conceding, for may be made to the discussion by Mr. Justice the purposes of the following suggestion, Field in Whitehead v. Shattuck, 138 U. S. that the law of California providing for the 146, 34 L. ed. 873, 11 Sup. Ct. Rep. 276, taxation of shares of stock in national and in Scott v. Neely, 140 U. S. 106, 35 L banks is invalid, still I insist that the decree ed. 358, 11 Sup. Ct. Rep. 712, and by Mr. of the court of appeals ought to be affirmed. Justice Brown in Wehrman v. Conklin, This is an equitable suit brought in the 155 U. S. 314, 39 L. ed. 167, 15 Sup. Ct. Rep. United States court, where the distinction 120. Now, in California there is a perfectly between law and equity is constantly en- adequate legal remedy for cases of this naforced. Upon the theory of the opinion, the ture. Section 3819 of the Political Code protax upon the shares of stock in the plaintiff vides that “the owner of any property, bank was illegal. The statute of California

who may claim that the assessment imposing that tax was void. Now, there is void in whole or in part, may pay the are two propositions which have entered into same to the tax collector under protest, the jurisprudence of this court so thoroughly which protest shall be in writing, and shall that they may be regarded as settled law: specify whether the whole assessment is First, that equity will not interfere where claimed to be void, or, if a part only, what there is a plain, adequate, and complete portion, and in either case the grounds upon remedy at law; and, second, that injunction which such claim is founded; and when so will not issue to restrain the collection of a paid under protest the payment shall in no tax simply on the ground of its illegality. case be regarded as voluntary payment, and The first is not only the rule of the court of such owner may at any time within six chancery in England, but it is the command months after such payment bring an action of the Federal statute. Section 723, Rev. against the county in the superior court, to Stat. [U. S. Comp. Stat. 1901, p. 583], Such a remedy has, in a case of the taxation

recover back the tax so paid under protest.” reads: “Suits in equity shall not be sus of national bank shares, been held by this tained in either of the courts of the United court adequate and complete, and sufficient States in any case where a plain, adequate, to exclude the interposition of a court of and complete remedy may be had at law.”

equity. In Dous v. Chicago, 11 Wall. 108, This defense was pleaded by the defendant 20 L. ed. 65, which was a bill filed by the in his answer, the sixteenth paragraph of owner of shares of the capital stock of the which reads as follows:

Union National Bank of Chicago, to restrain “And respondent further submits to this the collection of a tax levied by that city honorable court that complainant has a full, upon his shares, we said (p. 112, L. ed. complete, speedy, and adequate remedy at p. 67): law against respondent for all causes of ac- "The equitable powers of the court can tion, or causes of actions, stated or attempt only be invoked by the presentation of a ed to be stated in complainant's bill of com- case of equitable cognizance. There can be plaint on file in this action; and he here 'no such case, at least in the Federal courts,

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where there is a plain and adequate remedy | L. ed. 354, 19 Sup. Ct. Rep. 90, in which the at law. And, except where the special cir- rule is thus stated (p. 37, L. ed. p. 356, Sup. cumstances which we have mentioned exist, Ct. Rep. p. 92): the party of whom an illegal tax is collected “The collection of taxes assessed under the has ordinarily ample remedy, either by ac- authority of a state is not to be restrained tion against the officer making the collec- by writ of injunction from a court of the tion or the body to whom the tax is paid. United States, unless it clearly appears, not Here such remedy existed. If the tax was only that the tax is illegal, but that the illegal, the plaintiff protesting against its owner of the property taxed has no adequate enforcement might have had his action, after remedy by the ordinary processes of law, it was paid, against the officer or the city and that there are special circumstances to recover back the money, or he might have bringing the case under some recognized prosecuted either for his damages. No irrep- head of equity jurisdiction.” arable injury would have followed to him But it may be said that in the following from its collection. Nor would he have been cases this court has laid down an apparently compelled to resort to a multiplicity of suits different rule in respect to the taxation of to determine his rights. His entire claim national bank shares. New York v. Weaver, might have been embraced in a single ac- 100 U. S. 539, 25 L. ed. 705; Pelton v. Comtion."

mercial Nat. Bank, 101 U. S. 143, 25 L. ed. And this case was reaffirmed by the unani- 901; Cummings v. Merchants' Nat. Bank, mous opinion of this court in the late case 101 U. S. 153, 25 L. ed. 903; Hill v. Naof Pittsburgh, C. C. & St. L. R. Co. v. Board tional Albany Exch. Bank, 105 U. S. 319, of Public Works, 172 U. S. 32, 43 L. ed. 26 L. ed. 1052; Evansville Nat. Bank v. 354, 19 Sup. Ct. Rep. 90, in which the Britton, 105 U. S. 322, 26 L. ed. 1053; Lanquotation I have just made is also quoted. der v. Mercantile Nat. Bank, 186 U. S. 458,

The second proposition to which I have re- 46 L. ed. 1247, 22 Sup. Ct. Rep. 908. The ferred has also been often decided. Out of first was a writ of error to the court of apthe many decisions I refer to only two or peals of the state of New York, and, the three. Dows v. Chicago, 11 Wall. 108, 20 L. mode of attack upon the law having been ed. 65, in which is this language (p. 109, recognized by that court as proper, the quesL. ed. p. 66):

tion was not discussed here. In Cummings “Assuming the tax to be illegal and void, v. Merchants' Nat. Bank, Pelton v. Comwe do not think any ground is presented by mercial Nat. Bank being decided on its authe bill justifying the interposition of a thority, the right to an injunction was ascourt of equity to enjoin its collection. The serted. The case came from the circuit court illegality of the tax and the threatened sale of the United States for the northern disof the shares for its payment constitute of trict of Ohio, in which district the bank themselves alone no ground for such inter- was located. In delivering the opinion of position. There must be some special cir- the court Mr. Justice Miller said on page cumstances attending a threatened injury of 157: this kind, distinguishing it from a common But the statute of the state expressly detrespass, and bringing the case under some clares that suits may be brought to enjoin recognized head of equity jurisdiction be- the illegal levy of taxes and assessments or fore the preventive remedy of injunction can the collection of them. Section 5848 of the be invoked.”

Revised Statutes of Ohio, 1880, vol. 53, Laws State Railroad Tax Cases (Taylor v. Se- of Ohio, 178, 88 1, 2. And though we have

1 cor), 92 U. S. 575, 23 L. ed. 663, in which repeatedly decided in this court that the is this (p. 614, L. ed. 673):

statute of a state cannot control the mode "We do not propose to lay down in these of procedure in equity cases in Federal cases any absolute limitation of the powers courts, nor deprive them of their separate of a court of equity in restraining the col-equity jurisdiction, we have also held that, lection of illegal taxes; but we may say where a statute of a state created a new that, in addition to illegality, hardship, or right or provided a new remedy, the Federal irregularity, the case must be brought with- courts will enforce that right, either on the in some of the recognized foundations of common-law or equity side of its docket, as equitable jurisdiction, and that mere errors the nature of the new right or new remedy or excess in valuation, or hardship or in requires. Van Norden v. Morton, 99 U. S. justice of the law, or any grievance which 378, 25 L. ed. 453. Here there can be no can be remedied by a suit at law, either be doubt that the remedy by injunction against fore or after payment of taxes, will not an illegal tax, expressly granted by the statjustify a court of equity to interpose by in- ute, is to be enforced, and can only be approjunction to stay collection of a tax."

priately. enforced on the equity side of the And in Pittsburgh, C. C. & St. L. R. Co. court. v. Board of Public Works, 172 U. S. 32, 43 “The statute also answers another objection made to the relief sought in this suit, | any species of property, a court of equity namely, that equity will not enjoin the cold will give appropriate relief; and also where, lection of a tax ercept under some of the though the law itself is unobjectionable, the well-known heads of equity jurisdiction, officers who are appointed to make assessamong which is not a mere overvaluation, or ments combine together and establish a rule the illegality of the tax, or in any case where or principle of valuation, the necessary rethere is an adequate remedy at law. The sult of which is to tax one species of propstatute of Ohio expressly provides for an in- erty higher than others, and higher than the junction against the collection of a tax il- average rate, the court will also give relief. legally assessed, as well as for an action to But the bill before us alleges no such agreerecover back such tax when paid, showing ment or common action of assessors, and no clearly an intention to authorize both reme- general rule or discriminating rate adopted dies in such cases.

by a single assessor, but relies on the numer"Independently of this statute, however, ous instances of partial and unequal valuawe are of opinion that when a rule or system tions which establish no rule on the subof valuation is adopted by those whose duty ject.” it is to make the assessment, which is de- This ruling was somewhat like the action signed to operate unequally and to violate a of the court in Stanley v. Schwalby, 162 U. fundamental principle of the Constitution, S. 255, 40 L. ed. 960, 16 Sup. Ct. Rep. 754. and when this rule is applied, not solely to That was a case coming from a state court. one individual, but to a large class of in- Ordinarily when the judgment is reversed dividuals or corporations, that equity may the order is to remand the case for further properly interfere to restrain the operation proceedings not inconsistent with our opinof this unconstitutional exercise of power." ion, but, in view of action theretofore taken

Two reasons are here stated to justify the by the state court in the case, we felt conexception to the ordinary rule in respect to strained to direct the very judgment which injunctive relief. First, a state statute, and, should be entered. second, a design on the part of the state authorities to discriminate. There is no stated. 1247, 22 Sup. Ct. Rep. 908, a decree dis

In Lander v. Mercantile Nat. Bank, 46 L. ute of California making such special provision in reference to injunctions, and that missing the bill filed by the bank was afreason for a departure from the general rule

firmed. It is true in the opinion the merits may be put one side. The other implies an

of the bill were discussed, and nothing said intent on the part of the legislature or as

about the right to maintain a suit in equity. sessing officials to discriminate. It does not Evidently the matter passed without considmean simply that there has resulted a diseration, and not unnaturally so, as the bill crimination, but that one was intended. It on its merits was dismissed. is well known that in the early days of the

In the case before us, whatever may be national banking law there was a strong the effect of the statute in creating or openprejudice against it in different portions of ing the door to discrimination, no one can the Union, and adverse legislation in the read it and say that there was an intent on way of burdensome taxation was not uncom- the part of the legislature of California to mon, and it was because of that fact that discriminate injuriously against national the court permitted the exercise of the banks. The statute is positive in its lanstrong powers of equity. That I am right guage that national bank shares shall be in this, and that there has never been an in- taxed and assessed as is other property, and tent to apply a different rule to a national there was beyond doubt an attempt on the bank from that which has been in force in part of the California legislature to cast respect to other property, is made clear by only an equal burden of taxation on such the language of Mr. Justice Miller in a sub- shares. Of course, there ought not to be sequent case, German Nat. Bank v. Kimball, imputed to this court an intention to fa103 U. S. 732, 735, 26 L. ed. 469, 470. De vor national bank property in the matter livering the opinion of the court, he says:

of taxation, and to lay down a rule for “An apparent exception to the universal- | its benefit which is denied to all other propity of the rule is admitted in People v. erty. So, were I wrong in my construction Weaver, 100 U. S. 539, 25 L. ed. 705; Pel- of the state staute, beyond any peradventure ton v. Commercial Nat. Bank, 101 U. S. 143, the decree of the circuit court of appeals 25 L. ed. 901, and Cummings v. Merchants' ought to be affirmed and the bank remitted Nat. Bank, 101 U. S. 153, 25 L. ed. 903. It to its legal remedy. is held in these cases that when the inequality of valuation is the result of a statute of I am authorized to say that the CHIEF the state designed to discriminate inju- JUSTICE, Mr. Justice Brown, and Mr. Jusriously against any class of persons or lice Peckham concur in this dissent.

(197 U. S. 146) DISTRICT OF COLUMBIA, Appt., On April 22, 1902, an appeal was taken by V.

the District from the judgment of March ELIAS E. BARNES.

31, 1902, to this court. This appeal was dis

missed for want of jurisdiction. District of Court of claims equitable jurisdiction to Columbia v. Barnes, 187 U. S. 638, 47 L. ed.

reform contract -- compensation for extra 344, 23 Sup. Ct. Rep. 846. work.

Under the act of March 3, 1903 (32 Stat.

at L. 1070, chap. 1006), this appeal from 1. Equitable jurisdiction to reform a contract the judgment of March 31, 1902, was taken

for street improvements in the District of by the District, bringing the case in review Columbia, in order to determine the amount due under such contract to the claimant, was

before this court. conferred on the court of claims by the District of Columbia claims act of June 16,

Mr. Robert A. Howard and Assistant 1880, giving the court of claims original le- Attorney General Pradt for appellant. gal and equitable jurisdiction of claims aris- Mr. John C. Fay for appellee. ing out of contracts for public work in the District.

Mr. Justice Day delivered the opinion of 2. Compensation for work done outside of the

the court: original contract may be awarded by the court of claims under the District of Colum

We deem it unnecessary, in the view taken bia claims act of June 16, 1880, giving it orig. of this case, to set forth the voluminous findinal equitable and legal jurisdiction of all ings of fact made upon the trial in the court claims for work done by the order and direc. of claims. So much of the findings will be tion of the commissioners of the District, and

commented on as is necessary to a deteraccepted by them for the use, purposes, or benefit of the District.

mination of the legal questions involved, which are within a narrow compass.

Nor [No. 143.]

do we find it necessary to consider the al

leged discrepancies between the judgment of Argued January 23, 1995. Decided Febru- the court of claims, when the judgment was ary 27, 1905.

in favor of the District (22 Ct. Cl. 366), and

the findings and conclusions when the judg. PPEAL from the Court of Claims to re- ment was rendered which is now appealed to view an award under the District of this court. 37 Ct. Cl. 342.

. Columbia claims act. Affirmed.

This court does not sit to review findings See same case below, 37 Ct. Cl. 342. of fact made in the court of claims. They

are regarded as conclusive here, and our Statement by Mr. Justice Day:

jurisdiction is limited to a determination of The action now appealed was brought un- such questions of law as are properly der the act of June 16, 1880, known as the brought to our attention upon the record. District of Columbia claims act. 21 Stat. United States v. Smith, 94 U. S. 214-218, at L. 284, chap. 243. The original peti- 24 L. ed. 115. tion was filed August 4, 1880. At subse- The orignal action was brought in part on quent stages of the case amended petitions two contracts, which were in writing, duly were filed. On October 1, 1887, the court executed by the claimant and in behalf of of claims decided the case in favor of the the District of Columbia, and known as Nos.. District of Columbia, giving judgment 264 and 413, and were for certain street imagainst the claimant for the sum of $11,074.- provements in the city of Washington. 11. 22 Ct. Cl. 366. 'On November 18, 1887, These contracts were entered into on April the claimant filed a motion for a new trial, 29 and July 23, 1872, respectively, under auwhich was submitted on March 28, 1895, and thority of the act of February 21, 1871. 16. allowed on April 1, 1895. The case was then Stat. at L. 427, chap. 62. Certain verbal referred, as provided in the act, and upon agreements are also set up as having been report and hearing judgment was rendered entered into between the claimant and the on November 11, 1895, against the District commissioners of the District. for the claimant in the sum of $31,754.57; The court of claims, under the proofs, being rendered for Barnes in the sum of heard the parties upon the question as to $22,350.54, and for Ritchie, assignee, in the the right to reform the two written consum of $9,404.03, both sums due and paya- tracts. It refused to reform contract No. ble as of January 1, 1876. On April 20, 1896, 413, and decreed in favor of the District in the defendant filed its motion for a new the sum $13,039.79 for over payments made trial, which was granted on May 18, 1896. upon that contract. The court did reform On March 31, 1902, the court rendered a contract No. 264, finding that, by mistake in judgment in favor of the claimant, and his the drafting of the contract, “the rate of 40assignee, in the sum of $23,694.47, due and cents for grading old gravel streets to a payable as of March 1, 1876. 37 Ct. Cl. 342. depth of 2 feet” was omitted therefrom by

25 S. 0.-26.


mutual mistake of the parties, and that the ferred upon the same tribunal the power to written contract was executed without ob- grant the necessary legal and equitable reserving the omission. Upon the contract as lief. One who has the right to money rereformed, the claimant was permitted to re- lief upon a contract mistakenly omitted to cover for work done. Much of the discus- be reduced to writing, in accordance with sion in the oral argument and the brief of the true agreement of the parties, has a the learned counsel for the government is claim of equitable cognizance, for the condirected to the authority of the court of tract must be reformed to meet the intention claims to reform a written contract in the of the parties, and, when corrected, may be exercise of the jurisdiction of a court of adjudged a valid claim. equity for that purpose, and much discus- For the purpose of adjudicating such sion was had as to the various acts confer- claims, this statute gives to the court ring jurisdiction upon that court. But we equitable jurisdiction in order that it may think a construction of the act under cover determine what the District ought to pay to of which this suit was prosecuted is all that the claimant. Although unable to grant a is necessary to determine the question. The decree for specific performance, or exercise act of June 16, 1880, as appears by its title, the peculiar powers of a court of equity, the was intended to confer on the court of court of claims may determine the money claims jurisdiction to hear and determine all relief to which the claimant is entitled, outstanding claims against the District of whether arising out of an equitable or legal Columbia. For that purpose it was recited demand. This principle was recognized in in the 1st section of the act that the juris- United States v. Jones, 131 U. S. 1-18, 33 diction of the court should extend to, and it L. ed. 90–92, 9 Sup. Ct. Rep. 669. The court should have original legal and equitable ju- of claims in other cases has exercised the risdiction of claims arising out of, the con- equitable jurisdiction conferred in the act of tracts made by the board of public works June 16, 1880 (Cullinane v. District of and extensions made thereof by the commis- Columbia, 18 Ct. Cl. 577, 594), and like jurissioners of the District of Columbia, and also diction to reform contracts under the act of of the claims arising out of the contracts March 3, 1887, 24 Stat. at L. 505, chap. made by the commissioners since the act of 359, U. S. Comp. Stat. 1901, p. 752; South June 20, 1874 [18 Stat. at L. 116, chap. Boston Iron Co. v. United States, 34 Ct. Cl. 337], and broadly for all claims for work 174. done by order or direction of the commis- We think that the court had jurisdiction sioners, and accepted by them for the use, to reform the contract upon the facts found. purposes, or benefit of the District of Colum- It is objected that the court of claims bia, and prior to the 14th day of March, awarded relief for certain "stiff clay" exca1876.

vated under claimant's contract. The findThe language used is of the most compre- ings show that this work was not specifically hensive character, and confers, for the pur- covered by the original agreement, and that poses stated, original legal and equitable the work was accepted by the commissioners, jurisdiction.

and the District received the benefit thereof; It is true that the purpose of the various and the court finds that the excavation of acts conferring jurisdiction upon the court the stiff clay was done under a verbal agreeof claims has been held to be to permit the ment with the commissioners after the peradjudication of money demands against the formance of the original contract, and that United States, and it may be that under the claimant was entitled to the rate estabthis act, as under others, there was no in- lished therefor, as paid to other contractors tention to confer equity jurisdiction beyond for like work. that which is required to enable a court to The act of June 16, 1880, permits a recovdetermine whether money relief should be ery for work done by order and direction of granted. The intent of the act was to en- the commissioners, and accepted by them for able parties to submit the justice of their the benefit of the District. While it has claims against the United States to adjudi- been held that this would not authorize a cation in a competent court. For that pur- recovery for work done under the original pose the act conferred in terms, equitable as contract, at higher prices than had been well as legal jurisdiction,

agreed upon, yet, where there was a revival The province of the court of claims is to of the contract for distinct work, there pass upon the justice of the claim, and ad- might be a recovery at higher rates, which judge accordingly. And it is obviously in- entered into the terms of renewal as under. tended that, when necessary to adjudicate stood by the parties, notwithstanding the claims against the District, the court shall pre-existing contract. Campbell v. District be unhampered in the exercise of jurisdic of Columbia, 18 Ct. Cl. 193. tion, and as in many courts of this country The act of 1874 gave limited power to the having a civil code, there has been con-'commissioners, and in the act of February

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