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a clause near the end of the same section, it | determine whether it should be treated as is provided that "all buildings and real es- "railroad track," or as a building or structtate owned by such company, and used or oc- ure," or as "other real estate, owned or used cupied for any purpose not immediately con- in connection with the railroad." In any nected with its railroad," are to be taxed like view, its assessment and valuation by the similar property of individuals. board of public works, of which the plaintiff complains, was subject to review by the "cir- [46] cuit court of the county upon an appeal seasonably taken by the railroad company.

The same section further provides that the decision made by the board of public works shall be final, unless the railroad company, within thirty days after such decision comes to its knowledge, appeals (which it is expressly authorized by the statute to do) from the decision, as to the assessment and valuation made in each county through which the railroad runs, to the circuit court of that county. The appeal is to have precedence over all other cases, and is to be tried as soon as possible after it is entered. That court, on such appeal, is to hear all legal evidence offered by the appellant, or by the state, county, district, or municipal corporation, and, if satisfied that the valuation is fixed by the board of public works is correct, to confirm the same; but, if satisfied that such valuation is too high or too low, to correct it, and to ascertain and fix the true value of [45] the property *according to the facts proved, and certify such value to the auditor.

The section, indeed, also provides that, when the return made to the auditor is satisfactory to the board of public works, or when an assessment is made by that board, the auditor shall immediately certify, to the county court of each county through which the railroad runs, the value of the property of the railroad company therein, as valued and assessed as aforesaid; that that court shall apportion that value among the districts, school districts, and municipal corporations through which the railroad runs; and that the clerk of that court, within thirty days after it has laid the county and district levies, shall certify to the auditor the apportionment so made; that the recording officer of each district or municipal corporation through which the road runs shall, within thirty days after a levy is laid therein, certify to the auditor the amount levied; and that, if any such officer fails to do so, the auditor may obtain the rate of taxation from the land books in his office or from any other source.

This provision for a review and correction, by the circuit court of the county, of the assessment made by the board of public works, affords a convenient and adequate remedy for any error in the taxation, and has been held by the highest court of the state to be in accordance with its Constitution. Wheeling Bridge & T. Railway Co. v. Paull, 39 W. Va.

142.

That court has often had occasion to inquire how far the action of the circuit court of the county, in this respect, is administrative only, and how far it may be considered as judicial in its nature. Pittsburg, C. & St. L. Railway Co. v. Board of Public Works, 28 W. Va. 264; Charleston & Southside Bridge Co. v. Kanawha County Court, 41 W. Va. 658; State v. South Penn Oil Co. 42 W. Va. 80. See also Upshur County v. Rich, 135 U. S. 467 [34: 196].

But it is not important, in this case, to pursue that course of inquiry; since, in matters of taxation, it is sufficient that the party assessed should have an opportunity to be heard, either before a judicial tribunal, or before a board of assessment, at some stage of the proceedings. Kelly v. Pittsburgh, 104 U. S. 78, [26: 658]; Pittsburgh, C. C. & St. L. Railway Co. v. Backus, 154 U. S. 421, [38: 1031].

Even if, therefore, no previous notice of the hearing before the board of public works was required by the statute, or was in fact given to this plaintiff (which is by no means clear), yet the notice of its decision, with the right to appeal therefrom to the circuit court of the county, and there to be heard and to offer evidence, before the valuation of its property for taxation was finally fixed, afforded the plaintiff all the notice to which it was entitled.

The railroad bridge in question being liable to assessment under section 67, it is unnecessary, for the purposes of this case, to

But the provision directing the auditor to immediately certify the assessment made by the board of public works to the county court of each county must be construed as subordinate to and controlled by the next preceding provision giving the right of appeal from the board of public works to the circuit court of the county-as clearly appears from the next succeeding provision, by which it is after the value of the property of the railroad company has been "fixed by the board of public works, or by the circuit court on appeal as aforesaid" that the auditor is directed to assess and charge the property of the company "with the taxes properly chargeable thereon," in a book to be kept by him for that purpose.

The statute also contains a provision that "no injunction shall be awarded by any court. or judge to restrain the collection of the taxes, or any part of them, so assessed, except upon the ground that the assessment thereof was in violation of the Constitution of the United States, or of this state, or that the same were fraudulently assessed, or that there was a mistake made by the auditor in the amount of taxes properly chargeable *on [47] the property of said corporation or company; and in the latter case no such injunction shall be awarded unless application be first made to the auditor to correct the mistake claimed, and the auditor shall refuse to do so, which facts shall be stated in the bill." While this provision cannot, of course, bind the courts of the United States, it is nearly in accord with the rule governing the exercise of the jurisdiction in equity of those courts, as established by the decisions cited at the beginning of this opinion.

The statute further makes it the duty of the auditor, "as soon as possible after he completes the said assessments," to make out and transmit to the railroad company "a statement of all taxes and levies so charged;" and the duty of the railroad company "so assessed and charged" to pay "the whole amount of such taxes and levies upon its property" by the 20th of January "next after the assessment thereof;" and if the company does not pay "such taxes and levies" by that day, the auditor is directed to add ten per cent to the amount thereof to pay the expenses of collecting them, and to certify to the sheriff of each county "the amount of such taxes and levies assessed within his county."

In the present case, the bill does not allege that there was any fraud in the assessment; or that the defendants made any attempt to interfere with the plaintiff's ownership or control of its real estate; or that the plaintiff either made any application to the auditor to correct any supposed mistake in the assessment, or took any appeal from the decision of the board of public works to the circuit court of the county; or that, within the thirty days allowed for such an appeal, any attempt was made by the defendants, either to charge the plaintiff with the penalty of ten per cent for delay in payment of the taxes, or to levy upon its property for nonpayment of them.

UNITED STATES, Appt.,

v.

MARY A. WARDWELL, Admrx., of William V. B. Wardwell, Deceased.

U.

1.

2.

3.

(See S. C. Reporter's ed. 48-58.)

S. Rev. Stat. § 1069-§§ 306, 308-statute of limitations as to a claim against the United States.

U. S. Rev. Stat. § 1069, is not merely a statute of limitations but also jurisdictional in its nature, and limiting the cases of which the court of claims can take cognizance.

U. S. Rev. Stat. §§ 306-308, contain a promise by the government to hold the money covered into the Treasury under said sections, for the benefit of the owner until such time as he shall call for it. This is a continuing promise.

A claim against the United States for moneys carried to the credit of the payee of a check drawn by a disbursing officer in pursuance of U. S. Rev. Stat. § 306, for whica, by 308, the proper officer of the Treasury is required to give a warrant, does not accrue at the time the check is issued or at the time when it may be lost or destroyed, so that the statute of limitations (U. S. Rev. Stat. § 1069) will begin to run, but it will accrue only when the promise made by § 308 is broken, as, by refusal of an application for a warrant.

[No. 53.]

On the contrary, the bill would appear to have been studiously framed to avoid mak- Argued October 20, 1898. Decided Noveming any such allegation. The bill, which was sworn to on March 18, 1895, alleged that

on January 19, 1895 (sixty days before), the plaintiff received notice from the auditor of the decision of the board of public works; that "on the day of 1895" (which [48] might be any day before the bill was sworn to), the auditor added the ten per cent and certified to the sheriff the amount of the tax assessed with that addition; and that the sheriff "since said date" had demanded pay. ment of both sums from the plaintiff; and the affidavit filed with the bill on March 25, 1895, shows that the sheriff's levy on one of the plaintiff's engines was made after the bill was sworn to.

The only reasonable inference from these vague allegations of the bill is that the auditor waited for more than thirty days, after giving the plaintiff notice of the decision of the board of public works, in order to afford full opportunity for an appeal from that decision; and that no penalty was imposed for delay in payment of the taxes, nor any active measure taken to enforce them, until it had become clear that the plaintiff did not intend to take such an appeal.

The plaintiff, upon its own showing, having made no attempt to avail itself of the adequate remedies provided by the statute of the state for the review of the assessment complained of, is not entitled to maintain this bill.

Decree affirmed. 360

ber 28, 1898.

APPEAL from a judgment of the Court of Claims in favor of Mary A. Wardwell, administratrix, etc., against the United States for the amount of three checks drawn on the Assistant Treasurer of the United States in payment of claims against it, and which were subsequently lost and destroyed and the amounts thereof covered into the Treasury. Affirmed.

See same case below, 32 Ct. Cl. 30.

Statement by Mr. Justice Brewer: *This is an appeal from the court of claims. [49] The facts as found by that court are that in June, 1869, three checks were drawn in favor of William V. B. Wardwell, one by Major W. B. Rochester, paymaster, United States Army, and two by Major M. I. Ludington, quartermaster, United States Army, all drawn on the Assistant Treasurer of the United States in New York, and in payment of lawful claims of Wardwell against the United States. Subsequently to the issue of the checks and while still in the possession and ownership of Wardwell they were lost or destroyed, probably in a depredation committed on his house by Indians in the year 1872. None of the checks having been presented for payment the amounts thereof were covered into the Treasury of the United States and carried to the account of "outstanding liabilitics" in pursuance of the act 172 U. S.

of May 2, 1866, now sections 306 and follow-sued by the Treasurer, or by any disbursing ing, Revised Statutes, the entry on the books officer of any department of the government, of the Treasury (as shown by a report made upon the Treasurer or any Assistant Treas by the Secretary of the Treasury to the urer or designated depositary of the United House of Representatives) being as follows: *States, or upon any national bank designated [51]

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No part of the same has ever been paid. Wardwell is dead and the claimant is his duly appointed and acting administratrix. As such she in 1890 applied to the Treasury Department for payment of the checks by the issue of Treasury warrants, and at the same time filed a bond of indemnity, with sufficient sureties, for double the amounts thereof, to secure the United States against a possible second demand for payment. The First Comptroller of the Treasury declined to per[50] it the settlement of a new account or the issue of warrants in favor of the claimant. Thereafter, and on April 10, 1896, she commenced this suit. As a conclusion of law the court found that the statute of limitations did not begin to run until the 14th day of April, 1890, the time when the accounting officers of the Treasury refused to recognize the claimant's demand, and that she was entitled to recover the amount of the three checks, and on the 11th day of January, 1897, entered judgment for that amount. From such judgment the United States appealed to this court.

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as a depositary of the United States, and
which shall be represented on the books of
either of such offices as standing to the credit
of any disbursing officer, and which were is-
sued to facilitate the payment of warrants,
or for any other purpose in liquidation of a
debt due from the United States, and which
have for three years or more remained out-
standing, unsatisfied and unpaid, shall be
deposited by the Treasurer, to be covered into
the Treasury by warrant and to be carried
to the credit of the parties in whose favor
such certificates, drafts, or checks were re-
spectively issued, or to the persons who are
entitled to receive pay therefor, and into an
appropriation account to be denominated
'outstanding liabilities.'

"Sec. 307. The certificate of the Register of the Treasury, stating that the amount of any draft issued by the Treasurer to facili tate the payment of a warrant directed to him for payment has remained outstanding and unpaid for three years or more, and has been deposited and covered into the Treasury in the manner prescribed by the preceding section, shall be, when attached to any such warrant, a sufficient voucher in satisfaction of any such warrant or part of any warrant, the same as if the drafts correctly indorsed and fully satisfied were attached to such warrant or part of warrant. And all such moneys mentioned in this and in the preceding section shall remain as a permanent appropriation for the redemption and payment of all such outstanding and unpaid certificates, drafts, and checks.

Section 1069, Revised Statutes, provides: "Every claim against the United States, cognizable by the court of claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the secretary of the Senate or the clerk of the House of Representatives as provided by law, within six years after the claim first accrues: Provided, That the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accrued during "Sec. 308. The payee or the bona fide holdninority, and of idiots, lunatics, insane per- er of any draft or check, the amount of which sons, and persons beyond the seas at the time has been deposited and covered into the the claim accrued, entitled to the claim, Treasury pursuant to the preceding sections, shall not be barred if the petition be filed in shall, on presenting the same to the proper the court or transmitted, as aforesaid, with- officer of the Treasury, be entitled to have it in three years after the disability has ceased; paid by the settlement of an account and the but no other disability than those enumerat-issuing of a warrant in his favor, according ed shall prevent any claim from being barred, to the practice in other cases of authorized nor shall any of the said disabilities operate and liquidated claims against the United cumulatively."

The act of May 2, 1866, is entitled "An Act to Facilitate the Settlement of the Accounts of the Treasurer of the United States, and to Secure Certain Moneys to the People of the United States, or to Persons to Whom They are Due, and Who are Entitled to Receive the Same." (14 Stat. at L. 41, chap. 70.)

This was carried into the Revised Statutes as sections 306 and following. Sections 306, 307, and 308 read:

"Sec. 306. At the termination of each fiscal year all amounts of moneys that are represented by certificates, drafts, or checks, is

States.

Louis A. Pradt, Assistant Attorney General,
Messrs. George Hines Gorman and
for appellant.

Messrs. George A. King and Edward E.
Holman for appellee.

*Mr. Justice Brewer delivered the opin- [52] ion of the court:

Section 1069, Revised Statutes, is not merely a statute of limitations but also jurisdictional in its nature, and limiting the cases of which the court of claims can take

promise made in section 308 is broken, then
a claim for the breach of such contract first
accrues, and the limitation prescribed by sec-
tion 1069 begins to run. There is thus no
conflict with that section. Its full force is
not impaired.

cognizance. Finn v. United States, 123 U. S. 227 [31: 128].

Counsel for the government contend that the claim against the United States first accrued in 1869, when the checks were issued, or, if not then, at least in 1872, when they were lost or destroyed, and therefore, this being twenty-four years before the commencement of this suit, that the claim was barred. If there were nothing to be considered but the single section referred to, it would be difficult to escape this conclusion of counsel. It is further contended that sections 306, 307, and 308 relate to what is simply a matter of bookkeeping, and do not in any manner change the scope of the liability of the government. But we are of the opinion that they mean something more. While it may be that they do not provide for the creation of an express trust, liability for which, according to general rules, continues until *"The rule ought not to be extended to [54] there is a direct repudiation thereof, yet cases which do not fall precisely within it. they contain a promise by the government to Here the contract to be implied from the hold the money thus covered into the Treas-usual course of the business is that the bankury for the benefit of the owner until such er shall keep the money until it is called for. time as he shall call for it. This is a con- Although it is not strictly a bailment, it tinuing promise, and one to which full force partakes in some degree of that character." and efficacy should be given. If bookkeeping was the only matter sought to be provided for, there were no need of section 308. That prescribes payment, and payment in a particular way. The payee does not simply surrender his check and receive money. But "on presenting the same to the proper officer" he is "entitled to have it paid by the settlement of an account and the issuing of a warrant in his favor." This may be mere machinery for payment, but it is machinery not used or required until after the money [53] has been "covered into the *Treasury by warrant" and "carried to the credit" of the payThe right given is the right to surrender the check and receive a warrant on the Treasury. It will also be noticed that the purpose of the act of 1866 was, as expressed in its title, not merely to "facilitate the settlement of the accounts of the Treasurer of the United States," not merely to perfect a system of bookkeeping, but also "to secure certain moneys to persons to whom they are due, and who are entitled to receive the same." And the deposit by the Treasurer is not of a gross amount to be applied to any claims that may arise, but of the amount due for certain specified checks and drafts. In other words, the purpose of the government by this statute is to secure to each party who holds government paper the amount thereof, to place it in the Treasury to his credit, and to prescribe a method by which whenever he wishes he can obtain it. No time is mentioned within which he must apply for a warrant or after which the money is forfeited to the government. The ordinary rules for the maturity of negotiable paper do not control. Congress has directed that the money already once appropriated and checked against shall be placed in the Treasury and held subject to the call of the party for whose benefit it has been so appropriated and checked. There is no occasion for suit until after his application for a warrant is refused. When the contract created by the

In this connection it may be not amiss to notice those authorities in which it is held that upon the ordinary deposit of money with a bank no action will lie until a demand has been made, by check or otherwise, and that hence the statute of limitations will not begin to run until after a refusal to pay on such demand. In Downes v. Phoenix Bank of Charlestown, 6 Hill, 297, 300, Bronson, J., delivered the opinion of the court, and, after referring to the ordinary rule that where there is a promise to pay on demand the bringing of an action is a sufficient demand, and criticising it as illogical, added:

See also Johnson v. Farmers' Bank, 1 Harr. (Del.) 117; Watson v. Phoenix Bank, 8 Met. 217-221 [41 Am. Dec. 500].

ee.

In Dickinson v. Leominster Savings Bank, 152 Mass. 49, 55, it was held that the statute of limitations would not begin to run in favor of the bank and against a depositor until there had been something equivalent to a refusal on the part of the bank to pay, or a denial of liability.

In Girard Bank v. Bank of Penn Township, 39 Pa. 92, 98, 99 [80 Am. Dec. 507], the holder of a certified check was the plaintiff, and, the check having been outstanding more than six years, the statute of limitations was pleaded; but the plea was not sustained, the court, by Strong, J., saying, in respect to the case of an ordinary deposit:

It becomes a

"Were this a suit against the Bank of Penn Township by the original depositor the statute of limitations would be interposed in vain, not so much because a bank is a technical trustee for its depositors, as for the reason that the liability assumed by receiving be made. The engagement of a bank with a deposit is to pay when actual demand shall its depositor is not to pay absolutely and immediately, but when payment shall be required at the banking house. inere custodian, and is not in default or liable to respond in damages until demand has been made and payment refused. Such are the terms of the contract implied in the transaction of receiving money on deposit, terms necessary alike to the depositor and the banker. And it is only because such is the contract, that the bank is not under the obligation of a common debtor to go after its customer and return the deposit wherever he may be found. Hence it follows that no right of action exists, and the statute of limitations does not begin to run until the demand stipulated for in the contract has been duly made."

And the rule thus announced in respect to

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act of August 5, 1861 (12 Stat. at L. 292, chap. 45), provided, in the thirty-sixth sec[55] *"When a check payable to bearer, or order, tion, that, in case of a sale of real estate, and is presented with a view of its being marked a surplus remaining after satisfying the tax, 'goca,' and is so certified, the sum mentioned costs, etc., such surplus should be paid to the in it must necessarily cease to stand to the owner, or if he be not found, "then such surcredit of the depositor. It thenceforth pass-plus shall be deposited in the Treasury of the es to the credit of the holder of the check, United States, to be there held for the use of and is specifically appropriated to pay it the owner, or his legal representatives, until when presented, and as the purpose of having he or they shall make application therefor to it so certified is not to obtain payment, but the Secretary of the Treasury, who, upon to continue with the bank the custody of the such application, shall, by warrant on the money, the holder can have no greater rights Treasury, cause the same to be paid to the than those of any other depositor. Certain applicant." In United States v. Taylor, 104 ly he has no right of action until payment U. S. 216 [26: 721], the owner did not apply has been actually demanded and refused." for the surplus until more than six years had In Morse on Banks and Banking, page 40, elapsed from the closing up of the sale and the author says: the deposit of the money in the Treasury, and it was held that section 1069 did not bar his action, the court observing (p. 221):

"This section limits no time within which application must be made for the proceeds of the sale. The Secretary of the Treasury was not authorized to fix such a limit. It was his duty, whenever the owner of the land or his legal representatives should apply for the money, to draw a warrant therefor without regard to the period which had elapsed since the sale. The fact that six or any other number of years had passed did not authorize him to refuse payment. The person entitled to the money could allow it to remain in the Treasury for an indefinite *period without [57] losing his right to demand and receive it. It follows that if he was not required to demand it within six years, he was not required to sue for it within that time.

"A construction consistent with good faith on the part of the United States should be given to these statutes. It would certainly not be fair dealing for the government to say to the owner that the surplus proceeds should be held in the Treasury for an indefinite period for his use or that of his legal representatives, and then, upon suit brought to recover them, to plead in bar that the demand therefor had not been made within six years.

ordinary deposits was held to apply in case of a certified check:

"We have already seen that it is a contract specially modified by the clear legal understanding that the money shall be forthcoming to meet the order of the creditor whenever that order shall be properly presented for payment. It follows, therefore, that this demand for payment is an integral and essential part of the undertaking, it may be said, even of the debt itself. In short, the agreement of the bank with the depositor, as distinct and valid as if written and executed under the seal of each of the parties, is only to pay upon demand; accordingly, until there has been such demand, and a refusal thereto, or until some act of the depositor, or some act of the bank made known to the depositor, has dispensed with such demand and refusal, the statute ought not to begin to run, nor should any presumption of payment be allowed to arise."

It is not meant to be asserted that the authorities are unanimous on this question; on the contrary, there is a diversity of opinion. It is sufficient for the purposes of this case to notice that the rule finds support in the decisions of many courts of the highest standing. It is not inconsistent with the proposition laid down by this court in Marine Bank v. Fulton County Bank, 2 Wall. 252 [17: 785], and often reaffirmed, Phoenix Bank v. Risley, 111 U. S. 125 [28: 374], and cases cited in opinion, to the effect that the relation between a bank and its depositor is that of debtor and creditor and nothing [56] more, for that proposition throws no light upon the question when the debt of the debtor becomes due, and when the statute of limitations begins to run. Neither is it pretended that the relation of the United States to this petitioner was that of bank and depositor, but the reasoning of the authorities cited strengthens the conclusion that when Congress declared that this money should be covered into the Treasury to the credit of the plaintiff, and that she should, on presentation of the checks to the proper officer of the Treasury, be entitled to a settle ment of an account and the issue of a warrant, it was the intention to recognize a continuing obligation-one which was available to the plaintiff at any time she saw fit, that it was a promise which was not broken until after demand and refusal.

But authority more in point is not wanting to sustain these views. The direct tax

"The general rule is that when a trustee unequivocally repudiates the trust, and claims to hold the estate as his own, and such repudiation and claim are brought to the knowledge of the cestui que trust in such manner that he is called upon to assert his rights, the statute of limitations will begin to run against him from the time such knowl edge is brought home to him, and not before.

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"In analogy to this rule the right of the owner of the land to recover the money which the government held for him as his trustee did not become a claim on which suit could be brought, and such as was cognizable by the court of claims, until_demand therefor had been made at the Treasury. Upon such demand the claim first accrued."

This was reaffirmed in United States v. Cooper, 120 U. S. 124 [30. 606]. Counsel distinguish those cases from this in that there the money came into the Treasury subject to an express trust created by the act of Congress, which directed that it be there held for the benefit of the owner, while here in

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