Opinion of the court.

exercise directed without the assent or against the wish of the corporation or its citizens. The State could do it directly for and on behalf of the city, and without its intervention. The city could act only by authority from the State. The State is itself supreme, and needs no assent or authority from the city. It is not perceived that the act is less public and municipal in its character than if the State had compelled the city to lay the tax and to make the appropriation of the proceeds to the railroad company. In The Town of Guilford v. The Board of Supervisors of Chenango County, it was held:

*

1. That the legislature has power to levy a tax upon the taxable property of a town, and appropriate the same to the payment of a claim made by an individual against the town.

2. That it is not a valid objection to the exercise of such power, that the claim to satisfy which the tax is levied is not recoverable by action against the town.

3. That it does not alter the case that the claim has been rejected by the voters of the town, when submitted to them at a town meeting, under an act of the legislature authorizing such submission and declaring that their decision should be final and conclusive.

The action is no less a portion of the sovereign authority, when it is done through the agency of a town or city corporation.

We admit the proposition of the counsel, that the reve nue must be municipal in its nature to entitle it to the exemption claimed. Thus, if an individual should make the city of Baltimore his agent and trustee to receive funds, and to distribute them in aid of science, literature, or the fine arts, or even for the relief of the destitute and infirm, it is quite possible that such revenues would be subject to taxation. The corporation would therein depart from its municipal character, and assume the position of a private trustee. It would occupy a place which an individual could occupy with equal propriety. It would not in that action

* 3 Kernan, 148.

Opinion of Clifford and Miller, JJ., dissenting.

be an auxiliary or servant of the State, but of the individual creating the trust. There is nothing of a governmental character in such a position. It is not necessary, however, to speculate upon hypothetical cases. We are clear in the opinion that the present transaction is within the range of the municipal duties of the city, and that the tax cannot be collected.

Mr. Justice BRADLEY:

JUDGMENT AFFIRMED.

I concur in the judgment of the court in this case, without deciding whether Congress can or cannot tax the property of municipal corporations. I concur in the judgment on the ground that Congress did not intend by the internal revenue laws to tax property belonging to the States or to municipal corporations. This is apparent from the language of the 116th section of the Internal Revenue Act of 1864. I also concur in the construction given by the opinion to the Internal Revenue Act, that the tax imposed by the 122d section of that act was substantially a tax on the stock and bondholders, and not on the railroad or canal companies.

Mr. Justice CLIFFORD (with whose dissent and views concurred Mr. Justice MILLER), dissenting:

I dissent from the opinion and judgment of the court. Property owned by a municipal corporation and used as means or instruments for conducting the public affairs of the municipality may not be subject to Federal taxation, as it may perhaps be regarded as falling withit. the implied exemption established by a recent decision of this court.*

Well-founded doubts, however, may arise even upon that subject, as the tax in that case was levied directly upon the salary of a judicial officer, and the opinion of the court is carefully limited to the case then before the court. But concede, for the sake of the argument, that the means and instruments for conducting the public affairs of the munici

The Collector v. Day, 11 Wallace, 113.

Opinion of Clifford and Miller, JJ., dissenting.

pality are entitled to the same exemption from such taxation as the revenues of the State, it by no means follows that the private property owned by such a corporation, and held merely as private property in a proprietary right, and used merely in a commercial sense for the income, gains, and profits, is not taxable just the same as property owned by an individual, or any other corporation. Such a right is one which may be of great value to the government in time of war and imminent public danger, and one which the United States ought never to surrender.

Corporations of the kind are very numerous and they may and often do own large amounts of bank stock, bonds, and stocks of railroads, vacant lots and other real estate of great value, and many other species of personal property and choses in action never used or intended to be used as means or instruments for conducting the public affairs of the municipality, and in respect to all such property the right of Congress to pass laws subjecting the same to taxation with the property of the citizens generally is as clear, in my judgment, as it is that the power to lay and collect taxes, duties, imposts, and excises is vested by the Constitution in the national legislature.*

It was decided by this court, in the case of Vidal v. Girard's Executors, that the corporation of the city of Philadelphia had the power under its charter to take real and personal estate by deed and also by devise, inasmuch as the English statute which excepted corporations from taking such properties in the former mode was not in force in that State; that where a corporation has this power it may take and hold property in trust in the same manner and to the same extent as a private person may do, even though the trust is not strictly within the scope of the direct purposes of the charter of the municipality.

Ten years later this court affirmed that same rule in the

* McCulloch v. Maryland, 4 Wheaton, 434; Louisville v. Commonwealth, 1 Duvall, 295; National Bank v. Commonwealth, 9 Wallace, 353; Veazie Bank v. Fenno, 8 Id. 533.

† 2 Howard, 127.

Opinion of Clifford and Miller, JJ., dissenting.

case of The Executors of McDonogh v. Murdoch* which gave three millions of dollars to the city of Baltimore and more than a half-million of dollars to the city of New Orleans. Both of those corporations, it was held in that case, were empowered to take the property by devise, as the laws of the respective States do not prohibit such dispositions of prop.erty in their favor, affirming the principle that such corporations may take real and personal estate by deed or devise, and that they hold such property in trust in the same mauner and to the same extent as private persons, and the statistics will show that such corporations have become the grantees or devisees of vast amounts of personal and real estate, and that many of them still hold and enjoy the same for the income, rents, and profits.

Apply the rule here suggested to the case before the court and it is clear, whether it be held that the tax was levied upon the municipal corporation or the railroad company, that the judgment should be reversed.

NOTE.

Soon after the opinion of the court in the preceding case was delivered, a motion was made by Messrs. Gowen, Biddle, and Cuyler, the counsel of the different railroad companies, in the case of Barnes v. Railroad Companies, decided five weeks before it, for a rehearing of that case; the grounds of the motion being the obvious and irreconcilable contradiction between the language in one of the opinions given in the first case (see supra, pp. 302-3, 309), which opinion the learned counsel assumed to be the opinion of the court-and the opinion of the court in the second case (see supra, pp. 326-7); a contradiction which the counsel exhibited by a juxtaposition of passages in the two opinions.

And now, April 28th, 1873, the Chief Justice announced the order of the court DENYING THE MOTION.†

*15 Howard, 367.

† No reasons were assigned for the order. The reader will have perceived, probably, that notwithstanding the inconsistency of language in the

Statement of the case.

HUME v. BEALE'S EXECUTrix.

1. Although a former suit about the same subject-matter as a later one may not operate strictly as res adjudicata, yet it may well be referred to when it was heard on the scene of the transaction complained of, and when it relates to a transaction forty years oid, as an element by which a conclusion at a later day in accordance with its result may be assisted.

2. The rule of equity applied, that if a cestui que trust, after becoming sui juris, has with full knowledge of a breach of trust, for a long time acquiesced in it, equity will not relieve him.

3. Accordingly, a bill by cestui que trusts was dismissed, where all the grounds of action had occurred between twenty and thirty years, and the alleged breach of trust had taken place thirty-seven years before the bill was filed, and the trustee was dead.

4. This, although the cestui que trusts were women and the trustee a lawyer, who had married their half-sister.

ERROR to the Supreme Court for the District of Columbia; the case being thus:

Benjamin Berry, of Prince George's County, Maryland, owning a farm in that county, about twenty miles from Washington City, stocked with thirty slaves, and with proper animals and implements of husbandry, on which farm his son and the wife Eleanor of this son, with their three children, named respectively, Barbara, Amanda, and Rosalie, were living, conveyed it in March, 1826 (his said son having then recently died), to Robert Beale (a young lawyer of Washington City, a friend of the family, and who in 1829 married a daughter of the said Mrs. Eleanor Berry, by a former husband) on these trusts "and no other;" that is to say, "to retain the legal title to all the said property during the life and widowhood of the said Eleanor, and after her death or marriage, until such time as the eldest of the children shall

opinion relied on by counsel in the former case, with that expressing the opinion of the court in the latter, the judgments of the court in the two cases are in no way inharmonious. And the Reporter has already noted in his syllabus of the former case that the judgment in it was given by a court nearly equally divided, and that the majority of the court who agreed in the judgment did not agree in the grounds of it.