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RATON WATERWORKS Co. v. RATON.
tainly, however, it is not contended that the | Argued April 28, 1899. Decided May 15,
APPEAL from a decree of the Supreme
Court of the Territory of New Mexico
binding as to another condition of fact between different parties in a subsequent law-reversing the decree of the District Court of Colfax County for the specific performance suit. I cannot bring my mind to adopt the of warrants issued by the town of Raton, inferences deduced by the court in the case just referred to, in view of what I conceive etc., in a suit in equity brought by the Raton Waterworks Company against the town of to be the absolutely conclusive proof estabdismiss the suit. Decree of the Supreme lishing the existence of riparian rights in Raton, and directing the District Court to favor of the owners of water lots in the city Court of the Territory reversed, and case reof Washington. To deny them, it seems to manded to that court with directions to amend me, in view of the record now here, as was its decree by directing the District Court to said at the outset, would be an act of condismiss the bill without prejudice to the fiscation. Of course this is said only as conright of plaintiff to his action at law. 49 Pac. veying my appreciation of the facts. See same case below, 9 N. M.
As it is beyond my power by this dissent to enforce the rights of the owners of water lots to riparian and wharfing privileges, it would serve no useful purpose for me to measure the claims of such owners by the principle which I have endeavored to demonstrate, that is, the existence of the riparian rights. Suffice it for me to say, therefore, that in my judgment, even granting that such rights exist, the owners thereof would not be entitled to compensation if the right was impaired or destroyed as the consequence of work done by the government in the bed of the river for the purpose of improving navigation, for all riparian rights are held subject to this paramount authority. As a consequence, if injury resulted to riparian rights in the exercise of this controlling governmental power, such injury would be damnum absque injuria. But I think that where it is simply proposed, as is the case with many if not all the lots between the Long Bridge and the Arsenal grounds, to appropriate the riparian rights simply by an arbitrary line running along the edge of the water on the map, thereby cutting off all wharves and buildings thereon upon the theory that none of the riparian rights segregated by the line were private property, this is but an appropriation of private property requiring just compensation. By these general principles, in my judgment, the rights of the parties should be determined.
TOWN OF RATON.
Statement by Mr. Justice Shiras:
It was narrated in the bill that a contract
(See S. C. Reporter's ed. 360-364.)
A suit in equity cannot be sustained for a
Warrants of a town in the form of drafts drawn
to the right to bring an action at law.
rants, there will accrue and become due to the company semi-annually during the continuance of said contracts the sum of $1,962.50; that said town refuses to pay the said several amounts heretofore accrued and payable, and refuses to pay the said several amounts which will hereafter accrue, and gives out and pretends that the said contract is inoperative and invalid, and refuses to perform the same on its part, although in the possession, use, and enjoyment of the said water plant under said contract.
The bill prayed that the town of Raton should be decreed specifically to perform the said contract, and to pay the amounts of said rental which had theretofore accrued and become payable, and might thereafter accrue and become payable, in pursuance of the terms of the contract, and should be enjoined from enforcing said repealing ordi
The defendant, in its answer, admitted the making of the contract, the performance thereof by the company; that the board of trustees issued to the company the several warrants, drawn in manner. amount, and number as alleged in the bill; *that it was the duty of the treasurer of the town to keep in his office a book of registry, but denied that it was the duty of the treasurer to enter and set down, at the date of the presentation thereof, each of said warrants, and to pay out of the funds of the town in his hands for disbursement the amount of each of said warrants in the order in which the same were presented, or in any other order, said warrants being illegal, null, and void. Also admitted the passage of the original ordinance prescribing the method of payment of rental by the issuance of warrants, and the passage of the repealing ordinance complained of, and that it has been and now is in the possession, use, and enjoyment of the water plant of the waterworks company. The answer likewise admitted that it has given out that said contract, so far as it calls for the payment of $1,962.50 semi-annually, is inoperative and invalid, and that it has refused to pay said sum semi-annually. By way of defense, the answer alleged that defendant, as a municipal corporation of the territory of New Mexico, is authorized by law to levy each year and collect a special tax sufficient to pay off the water rents agreed to be paid to the complainant, provided that said special tax shall not exceed the sum of two mills on the dollar for any one year; that said alleged semi-annual rental of $1,962.50 claimed by the complainant is far in excess of the amount derivable from a two-mill tax levy on the assessed value of property subject to taxation within said town of Raton, and that said rental, so far as it is in excess of the proceeds of such a tax levy, is illegal; that said original ordinance, so far as the same imposes upon the defendant the obligation to pay complainant an annual sum greater than the proceeds of a twomill tax, or to impose a tax levy greater than said rate, was and is null, void, and inoperative, the same having been made and entered into by defendant's trustees in vio
lation of law and in excess of the powers conferred upon them by the statutes of New Mexico; and that the warrants issued to complainant were and are null and void, because issued in excess of the amount deriv. able from a two-mill tax levy on each dollar of taxable property.
Having thus answered, the defendant pleaded "that all and every the matters the complainant's bill mentioned and complained of are matters which may be tried and determined at law, and with respect to which the complainant is not entitled to any relief from a court of equity, and this defendant asks that it shall have the same benefit of this defense as if it had demurred to the complainant's bill."
The cause was heard on bill and answer, and in September, 1896, the said district court entered a decree in accordance with the prayer of the bill, decreeing that the said original ordinance, contract, and agreement should in all things be specifically performed by and on the part of the town of Raton, and that the town should issue and pay the warrants out of any funds or moneys in the treasury of the town, whether derived from general or special taxes. From this decree an appeal was taken to the supreme court of the territory, where the decree of the lower court was reversed and an order was entered directing the lower court to dismiss the bill at the costs of the waterworks company. The cause was then brought to this court on an appeal from the decree of the supreme court of the territory.
Mr. Henry A. Forster, for appellant: The bill made out a proper case for equitable relief.
National Waterworks Co. v. Kansas City,
27 U. S. App. 165, 62 Fed. Rep. 853, 10 C. C. A. 653, 27 L. R. A. 827; Fazende v. Houston, 34 Fed. Rep. 95.
tained in ordinance No. 10, at least to the Specific performance of the contract conextent of declaring it a valid and subsisting contract, binding and obligatory on the town, and ordering the town to pay the hydrant rentals, should have been granted.
National Waterworks Co. v. Kansas City, 27 U. S. App. 165, 62 Fed. Rep. 853, 10 C. Č. A. 653, 27 L. R. A. 827.
New Orleans Waterworks Co. v. Rivers, 115 U. S. 674, 683, 29 L. ed. 525, 528; New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 673,29 L. ed. 524; Walla Walla City v. Walla Walla Water Co. 172 U. S. 1, ante, 341; Foster v. Joliet, 27 Fed. Rep. 899; Quincy v. Bull, 106 III. 337; Baltimore v. Radecke, 49 Md. 217, 33
Am. Rep. 239; People, Davis, v. Sturtevant, | 423 [24: 1061]; Rogers v. Durant, 106 U. S. 9 N. Y. 263, 59 Am. Dec. 536. 644 [27: 303].
Mr. N. B. Laughlin, for appellee: There is not any equity in complainant's bill because the principal object sought is specific performance; and on the allegations, as therein averred, the court has no jurisdiction to enforce the relief prayed for.
Phyfe v. Wardell, 2 Ed. Ch. 47; Pierce v. Plumb, 74 Ill. 326.
There was nothing to act on in the case at bar but the validity of the warrants issued under the contract, and that can be determined in an action at law.
State, Great Falls Waterworks, v. Great Falls, 19 Mont. 518.
Appellant has not exhausted his remedy at law.
Leadville Illuminating Gas Co. v. Leadville, 9 Colo. App. 400; Leadville Water Co. v. Leadville, 22 Colo. 297.
This court should affirm the decree of dismissal with costs, with the modification that the dismissal is without prejudice to the rights of the appellant or the legal holders of said warrants to bring an action at law.
Lacassagne v. Chapuis, 144 U. S. 119, 36 L. ed. 368; Sanders v. Devereux, 19 U. S. App. 630, 60 Fed. Rep. 311, 8 C. C. A. 629; 6 Enc. Pl. & Prac. 895.
 *Mr. Justice Shiras delivered the opinion of the court:
The waterworks company, when it filed its
Decided May 15, 1899.
bill in this case, was in possession of war- Argued and Submitted January 20, 1899. rants that had been issued to it by the town of Raton in pursuance of the provisions of a contract existing between the company and
contract. Xiphone warrants were in the form of drafts drawn on the treasurer of the town, signed by the mayor and countersigned by the recorder of the town. They were for specific sums of money, payable at fixed periods, bearing interest from date, and some of them past due when the bill was filed.
 In short, the warrants, if valid, were legal causes of action enforceable in a court of law. The defendant did not waive the question, but averred in its answer that the matters complained of in the bill were matters which could be tried and determined at law. And the supreme court of the territory in its opinion says: "If the warrants upon which payment is sought here are valid, an action at law is the proper remedy to enforce their payment. They have been issued, and are claimed to be outstanding obligations against defendant town, and it says they are void, and therefore declines to pay them. Then, if in any action at law judgment should be entered in favor of the legal holders, and defendant's trustees should decline to provide for their payment, mandamus would be the proper remedy to compel the necessary levy." [9 N. M. -, 49 Pac. 898.]
In this state of facts we think the courts below erred in considering and determining the legal controversy in a suit in equity, but should have dismissed complainant's bill without prejudice to its right to bring an action at law. Barney v. Baltimore, 6 Wall. 280 [18: 825]; Kendig v. Dean, 97 U. S.
'N ERROR United States Circuit
I Court of Appeals for the First Circuit to review a judgment of that court affirming the judgment of the Circuit Court of the United States for the District of New Hampshire in favor of Edward Hawkins, receiver of the Indianapolis National Bank, against the First National Bank of Concord for the recovery of an assessment on the stock of the Indianapolis bank held by the First National Bank of Concord; said assessment being ordered by the Comptroller to enforce the individual liability of stockholders. Judg. ment of the Circuit Court of Appeals and of the Circuit Court reversed, and cause remanded to the Circuit Court, with directions to enter a judgment in accordance with the opinion of this court.
See same case below, 33 U. S. App. 747, 79 Fed. Rep. 51, 24 C. C. A. 444.
Statement by Mr. Justice Shiras: *In May, 1895, Edward Hawkins, as receiv. er of the Indianapolis National Bank, brought a suit, in the Circuit Court of the United States for the District of New Hampshire, against the First National Bank of Concord. At the trial a jury was waived, and the court found the following facts:
"The plaintiff is receiver of the Indianapolis National Bank of Indianapolis, which bank was duly organized and authorized to do business as a national bank association. The bank was declared insolvent and ceased to do business on the 24th day of July, 1893; the plaintiff was duly appointed and qualified
receiver of the bank on the 3d day of August, 1893, and took possession of the assets of the bank on the 8th day of the same month.
"The capital stock of the bank was 3,000 shares of the par value of $100 each. On the 25th day of October, 1893, an assessment was ordered by the Comptroller of $100 per share on the capital stock of the bank, to enforce the individual liability of stockholders, and an order made to pay such assessment on or before the 25th day of November, 1893; and the defendant was duly notified thereof.
"The defendant, being a national banking association, duly organized, and authorized to do business at Concord, N. H., on the 21st day of May, 1889, with a portion of its surplus funds, purchased of a third party, authorized to hold and make sale, 100 shares of the stock of the Indianapolis National Bank as an investment, and has ever since held the same as an investment. The defendant bank has appeared upon the books of the Indianapolis bank as a shareholder of 100 shares of its stock, from the time of such purchase to the present time. During such holding the defendant bank received annual dividends declared by the Indianapolis bank *prior to July, 1893. The defendant has not paid said assessment or any part thereof."
After argument the court, on July 28, 1896, entered judgment in favor of the plaintiff for the sum of $11,646.67 and costs. From that judgment a writ of error from the United States circuit court of appeals for the first circuit was sued out, and by that court the judgment of the trial court was, on March 5, 1897, affirmed. 33 U. S. App. 747. From the judgment of the circuit court of appeals a writ of error was allowed to this
Mr. Frank S. Streeter for plaintiff in
The recent decision in California Bank v. Kennedy, 167 U. S. 362, 42 L. ed. 198, determines the point raised in this case.
No power is granted by U. S. Rev. Stat. § 5136 to national banks to buy and sell stocks generally; nor is such power incidental to the business of banking.
First Nat. Bank v. National Exch. Bank, 92 U. S. 122, 23 L. ed. 679; Logan County Nat. Bank v. Townsend, 139 U. S. 67, 73, 35 L. ed. 107, 110; Re Royal Bank of India, L. R. 4 Ch. 252; Fowler v. Scully, 72 Pa. 456, 13 Am. Rep. 699; Weckler v. First Nat. Bank, 42 Md. 581, 20 Am. Rep. 95; Nassau Bank v. Jones, 95 N. Y. 115, 47 Am. Rep.
Upon principle and authority a stockholder's liability to assessment is a contractual liability.
The Concord Bank had no power to make the contract, and it cannot be enforced against it.
Richmond v. Irons, 121 U. S. 27, 30 L. ed. 864; Flash v. Conn, 109 U. S. 371, 27 L. ed. 966; Hodgson v. Cheever, 8 Mo. App. 321; Manville v. Edgar, 8 Mo. App. 324; Queenan v. Palmer, 117 Ill. 619; Aultman's Appeal, 98 Pa. 505; Sackett's Harbour Bank v. Blake, 3 Rich. Eq. 225; Woods v. Wicks, 7 Lea, 40: Ex parte Van Riper, 20 Wend. 614; Grand Rapids Sav. Bank's Appeal, 52 Mich. 557; Lowry v. Inman, 46 N. Y. 119; Corning v. McCullough, 1 N. Y. 47.
Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. ed. 629; Bank of United States v. Dandridge, 12 Wheat. 64, 6 L. ed. 552; Head v. Providence Ins. Co. 2 Cranch, 127, 2 L. ed. 229; Beaty v. Knowler, 4 Pet. 152, 7 L. ed. 813; Bank of Augusta v. Earle, 13 Pet. 519, 10 L. ed. 274; Perrine v. Chesapeake & D. Canal Co. 9 How. 172, 13 L. ed. 92; Oregon R. & Nav. Co. v. Oregonian R. Co. 130 U. S. 1, 32 L. ed. 837; Logan County Nat. Bank v. Townsend, 139 U. S. 67, 35 L. ed. 107; Wiley v. First Nat. Bank, 47 Vt. 546; Whitney v. First Nat. Bank, 50 Vt. 388, 28 Am. Rep. 503; Talmage v. Pell, 7 N. Y. 328; Franklin Co. v. Lewiston Inst. for Savings, 68 Me. 43, 28 Am. Rep. 9; Crocker v. Whitney, 71 N. Y. 161.
The Concord Bank is not estopped to insist upon the defense of ultra vires.
Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 24, 35 L. ed. 55; Pennsylva nia R. Co. v. St. Louis, A. & T. H. R. Co. 118 U. S. 290, 30 L. ed. 83; Thomas v. West Jersey R. Co. 101 U. S. 85, 25 L. ed. 953; Atty. Gen. v. Great Eastern R. Co. L. R. 5 App. Cas. 473; Small v. Smith, L. R. 10 App. Cas. 119; Wenlock v. River Dee Co. L. R. 10 App. Cas. 354; Trevor v. Whitworth, L. R. 12 App. Cas. 409; McCormick v. Market Nat. Bank, 165 U. S. 538, 41 L. ed. 817; Union P. R. Co. v. Chicago, R. I. & P. R. Co. 163 U. S. 564, 41 L. ed. 265.
Messrs. John G. Carlisle and J. W. Kern, for defendant in error:
This court, recognizing the policy of the law in this respect, has decided that the comptroller has authority to make assessments upon the shareholders to pay debts, and that an assessment made for that purpose is conclusive both as to necessity for making it and as to the amount of each shareholder's liability.
Kennedy v. Gibson, 8 Wall. 498, 19 L. ed. 476; Casey v. Galli, 94 U. S. 673, 680, 24 L. ed. 168, 170; National Bank v. Case, 99 U. S. 628, 25 L. ed. 448; Waite v. Dowley, 94 U. S. 527, 24 L. ed. 181.
National banks are not expressly prohib ited by the law from acquiring or holding shares of stock in other corporations, but on the contrary, are permitted to do so under certain circumstances.
California Bank v. Kennedy, 167 U. S. 362, 42 L. ed. 198; Anderson v. Philadel phia Warehouse Co. 111 U. S. 479, 28 L. ed. 478; National Bank v. Case, 99 U. S. 628, 25 L. ed. 448; Bowden v. Johnson, 107 U. s. 251, 27 L. ed. 386.
One is estopped from denying his liability by voluntarily holding himself out to the public as the owner of stock.
Pullman v. Upton, 96 U. S. 328, 24 L. ed. 818; Sanger v. Upton, 91 U. S. 56, 23 L. ed. 220; Upton v. Tribilcock, 91 U. S. 45, 23 L. ed. 203; Webster v. Upton, 91 U. S. 65, 23 L. ed. 384; Casey v. Galli, 94 U. S. 673, 24 L. ed. 168.
The express language of the act of Congress imposing the liability on the party to whom the shares are transferred on the
books of the bank estops the plaintiff in er- | as pledgee it may become the owner of the
Accordingly it was held in that case that a provision of the laws of the state of CaliIns.fornia, which declared a liability on the part of stockholders to pay the debts of a savings bank, in proportion to the amount of stock held by each, could not be enforced against a national bank, in whose name stood shares that the stock of the savings bank had not of stock in a savings bank, it being admitted been taken as security, and that the transac tion by which the stock was placed in the name of the national bank was one not in the course of the business of banking for which the bank was organized.
Bank of Redemption v. Boston, 125 U. S.
 *Mr. Justice Shiras delivered the opinion
of the court:
The questions presented for our consideration in this case are whether one national bank can lawfully acquire and hold the stock of another as an investment, and, if not, whether, in the case of such an actual purchase, the bank is estopped to deny its liability, as an apparent stockholder, for an assessment on such stock ordered by the Comptroller of the Currency.
*It is suggested by the learned circuit [368} judge, in his opinion overruling a petition peals, that the question considered in the for a rehearing in the circuit court of apcase of California Nat. Bank v. Kennedy was the liability of a national bank as a the question in the present case is as to its stockholder in a state savings bank, while liability as a stockholder in another national bank, and that therefore it does not follow beyond question that the decision in the former case is decisive of the present one. U. S. App. 178.
No reason is given by the learned judge in support of the solidity of such a distinction, and none occurs to us. Indeed, we think that the reasons which disqualify a national bank from investing its money in the stock of another corporation are quite as obvious when that other corporation is a national bank as in the case of other corporations. The investment by national banks of their surplus funds in other national banks, situated, perhaps, in distant states, as in the present case, is plainly against the meaning and policy of the statutes from which they derive their powers, and evil consequences would be certain to ensue if such a course of conduct were countenanced as lawful. Thus, it is enacted, in section 5146, that "every director must, during his whole term of serv ice, be a citizen of the United States, and at least three fourths of the directors must have resided in the state, territory, or district in which the association is located for at least one year immediately preceding their election, and must be residents therein during their continuance in office."
One of the evident purposes of this enactment is to confine the management of each bank to persons who live in the neighborhood, and who may, for that reason, be supposed to know the trustworthiness of those who are to be appointed officers of the bank, and the character and financial ability of those who may seek to borrow its money. But if the funds of a bank in New Hampshire, instead of being retained in the custody and management of its directors. are 64 1009
By section 5136 of the Revised Statutes a national banking association is authorized "to exercise by its board of directors, or duly authorized officers and agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking; by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of indebtedness; by receiving deposits; by buying and selling exchange, coin, and bullion; by loaning money on personal security; and by obtaining, issuing, and circulating notes according to the provisions of this
In construing this provision, it was said
And in the recent case of California Nat.