Petition for Rehearing — Illinois Central Railroad Company, Appt. v. Wirt Adams

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Supreme Court of the nites States.

OCTOBER TERM, 1900.

Nos. 77 and 78.

THE ILLINOIS CENTRAL RAILROAD COMPANY,

APPELLANT,

v8.

WIRT ADAMS, State ReEveNvE AGENT, ET AL.

And No. 79.

THE YAZOO AND MISSISSIPPI VALLEY RAILROAD

COMPANY, AppeELLANT,

v8.

WIRT ADAMS, Strate REVENUE AGENT, ET AL.

PETITION FOR REHEARING AND BRIEF IN

SUPPORT OF SAME. ADDITIONAL AUTHOR-

ITIES.

Frank A. CrIvTz,

MARCELLUS GREEN,

R. C. Beckett,

Attorneys for Appellees.

(17,482, 17,483, and 17,434.)

Jupp & Derwsiter, Privrers, Wasuixeton, D.C, 1-22-’01

1O1L09

Supreme Court of the alnited States

OCTOBER TERM, 1900.

THE ILLINOIS CENTRAL RAILROAD COMPANY,

APPELLANT,

US.

WIRT ADAMS, State REVENUE AGENT, ET AL.

And No. 79.

THE YAZOO AND MISSISSIPPI] VALLEY RAILROAD

COMPANY, APPELLANT,

Us.

WIRT ADAMS, Strate REVENUE AGENT, ET AL., APPELLEES.

ADDITIONAL AUTHORITIES TO ADD IN BRIEF

IN SUPPORT OF PETITION FOR REHEARING.

On pages 7 to 8 of our brief in support of the petition for

rehearing, we ask the court, in aid of our said brief, to the

point that it is the proper practice in equity to dismiss a

pure injunction bill at the next term after the refusal of

POR TEEY NOME RIDE RE RY 2 ap PMY Shee BN nn a eT ee — .

or dissolution of a temporary injunction, on motion, to

add and examine—

Sauls es. Freeman, 12 Am. St. 190, 199.

Same case, 24 Fla. 209.

Am. Live Stock Co. vs. Chicago, Ke. 56 Am. St.

399, 400.

Same case, 145 []ls., 210.

Indian River, &e., vs. East Coast, &e., 29 Am. St. 276,

Burlington, &e., vs. Dey, 31 Am. St., par. 19, p. 49s.

Same cease, S2 Lowa, 312.

(Sd ed) 2 High on Injunctions, and notes 2. 3, and 3,

page 1140, citing—

Wade vs. London, 30 La. Ann., 660.

Titus vs. MeGee, 25 Uls.. 257.

Withers vs. Denmead, 22) Md. 155.

See also where the bills were distnissed in—

Jamison vs. Dulaney, 74 Miss., S90, SOL, See.

ILurley vs. Levee Commrs., 76 Miss., 141, 142.

In these cases the motions to dismiss the bills were be

cause “the sole object of said original bill was for an

injunction, as therein shown, which injunction was by this

court refused,” and the decree of the court is “that said

motion be, and the same is hereby, sustained.”

Record in No. 77 (318), pp. 43, 4.

Reeord in No. 78 (319), pp. 133, 134.

Record in No. 79 (320), p. 96.

There were several grounds of the motions to discharge

the temporary restraining orders and to refuse the injunc

1

»

»

of which were non-Federal; and while it. is

tions, some

that the court refused the injunctions because it finds

true

“that complainant has shown no right to invoke the juris-

diction of this court, and farther being of opinion that this

court has no jurisdiction,” still our contention is, as shown

in brief filed with the petition, that on appeal this is not

confined to the grounds recited by the lower court, but this

court must examine for itself and sustain the lower court if

any ground of the motion is good, and that such being the

ease, it is impossible in the nature of things under the plead-

ings that the bilis could have been dismissed for want of

jurisdiction, it matters not who says so.

For motions and decrees in reference to the injunctions,

see—

No. 77 (318), pp. 31, 32, 38, 39.

No. 78 (319), pp. $9, 128.

No. 79 (S20), pp. TS, 19, 51,

Prevers of bills respectively pages 26, 55, 12.

Respectfully submitted, — ~

MaArcCELLUS GREEN.

Prank A. Crivz.

R. C. Beekerr.

Supreme Court of the alnited States.

OCTOBER TERM, 1899.

No. 3 19.

ILLINOIS CENTRAL RAILROAD COMPANY,

APPELLANT,

Us.

WIRT ADAMS, Strate Revenue AGentr, ann THE

RAILROAD COMMISSION OF THE STATE OF

MISSISSIPPI ET AL., AppeLiers.

Affidavit of Wirt Adams Setting Up the Decree of the

State Court Subsequent to this Appeal as Res Adju-

dicata.

Before me, L. B. Moseley, clerk of the circuit court of the

United States for the southern district of Mississippi, this

day personally appeared the within-named Wirt Adams,

State revenue agent and appellee in the above-styled cause

and well known to me as such, and, being by me first duly

sworn, on oath states that he is such State revenue agent

and appellee; that the court number of said suit was No.

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560; that thereafter an appeal had been taken therein to the

United States circuit court of appeals for the fifth circuit

under said number 806 in that court; that after said appeal

had been dismissed by said circuit court of appeals and before

the bill was dismissed by said circuit court of the Unite

States for the southern district of Mississippi, on May |

1899, and before thie appeal was taken to this court he

began a suit in the chancery court of Hinds county, firs

district, State of Mississippi,as said revenue agent, on April

25, 1899, for the recovery of the same identical taxes forthe

years 1886 to 1891, inclusive, on the identical property now

in controversy in the bill in this suit, by the enforcementof

the lien of said assessment made by said State Railroad

Commission, as State railroad assessors, on August 2, 1898,

the identical assessment sought to be enjoined in this suit:

that appellant and Yazoo and Mississippi Valley Railroad

Company and said State Railroad Commission were defend

ants to said suit and duly served with process therein; that

appellant and Yazoo and Mississippi Valley Railroad Com-

pany on April 29, 1899, filed a petition and bond for the

removal of said suit to the circuit court of the United

States for the southern district of Mississippi on the

ground that Federal questions were involved; that said

petition was denied, on the ground that the cause was

not removable in its nature, by said chancery court

on May 8, 1899, and thereupon both of said defend:

ants jointly answered the bill; that upon issues prop.

erly made in said suit the said chancery court, upon

pleadings and proof, at the January special term, 1900,

thereof, adjudged: 1, that as to the exemption or appropri:

ation of taxes for the years 1886 to 1891, inclusive, on the

said property, under said 21st section, extended to Natchez,

Jackson and Columbus Railroad Company by act of Av

gust 8, 1870; that the said 21st section was unconstitutional

and void ab initio under the constitution of 1869 of the

State of Mississippi; 2, that if said exemption or appropri

10113

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tion of taxes was valid, it was repealed by chapter 42, Acts

of 1875, p. 66; 5, that chapter 11, Acts of 1878, p. 87, operated

asa repeal of chapter 116, Acts of 1878, p. 283, purporting

to reenact said 21st section; 4, that said chapter 116, Acts

of 1878, is unconstitutional and void under said constitution

of 1869, and especially so because of the enactment of said

chapter 11, Acts of 1878; 5, that, if then existent, said 21st

section was repealed by chapter 10, Code 1880; 6, that it is

doubtful if chapter 22, Acts of 1884, p. 29, re-enacted said

exemption; but, if so, said chapter 22 was unconstitutional

in this regard under said constitution of 1869; that if said

chapter 22 re-enacted said exemption, or if said exemption

was then existent, it was repealed by chapter 2, Acts of 1886,

p. 28, and by chapter 2, Acts of 1890, p. 12; 7, that if

said chapter 2, Acts of 1890, could be treated as recognizing

said exemption as reinstated by said act of 1884, such recog-

nition Was unconstitutional and void under said constitu-

tion of 1869; 8, that the decision of the State Railroad Com-

mission in making the assessment in controversy in August,

1898, was made both on the law and the evidence on regular

hearing on notice, as appears from the pleadings and records

in evidence therein, and that said decision was res adjudicata

and established conclusively the liability of said property

to taxation, and that said taxes had not veen paid; 9, that

the decisions of the supreme court of Mississippi in num-

bers 8629 and 9251 of that court on appeal from the circuit

court of Hinds county in case number 2788, consolidated

(being No. 244 of this court), are res adjudicata, and establish

conclusively the liability of the property in controversy to

taxation ; 10, that said chancery court, considering the other

issues presented by the pleadings and evidence “ to be un-

necessary, immaterial, and irrelevant, declines to decide the

same,” and final decree was thereupon rendered by said ehan-

cery court declaring the lien of said taxes upon the property

in controversy a superior lien and enforcing the said lien for

said taxes against the said property and decreeing a sale

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thereof to pay the same, but not rendering any personal

decree therein against appellant and Yazoo and Missigsipy)

Valley Railroad Company except for costs of suit: that

thereafter said defendants sued out an appeal from said de

eree, returnable to the March term, 1900, of the supreme

court of Mississippi, and said appeal is still pending and

undetermined, and the said decree still stands in full foree

and effect, unmodified, unreversed, or unaltered, and the

said Wirt Adams and said State Railroad Commission pleads

said proceeding and decree of said chancery court in said

cause numbered 1681 as res adjudicata and a bar to the

further prosecution of the appeal in this cause, and prays

that said appeal may be dismissed.

Wir ApDams.

Sworn to and subscribed before me this March 2, 1900.

[seav.] L. B. Mosery,

Clerk of the Cireuit Court of the United States

for the Southern District of Mississippi.

[Endorsed :] File No., 17,433. Supreme Court U.5., 0c

tober term, 1899. Term No., 319. The Illinois Central

R. R. Co., appellant, vs. Wirt Adams, State revenue agent,

eal. Aftidavit of Wirt Adams setting up the decree of the

State court subsequent to this appeal as res adjudicata. Filed

Mareh 7, 1900.