ordinary deposits was held to apply in case of a certified check: [55] *"When a check payable to bearer, or order, is presented with a view of its being marked 'goca, and is so certified, the sum mentioned in it must necessarily cease to stand to the credit of the depositor. It thenceforth passes to the credit of the holder of the check, and is specifically appropriated to pay it when presented, and as the purpose of having it so certified is not to obtain payment, but to continue with the bank the custody of the money, the holder can have no greater rights than those of any other depositor. Certain ly he has no right of action until payment has been actually demanded and refused." In Morse on Banks and Banking, page 40, the author says: "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 settlement 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 act of August 5, 1861 (12 Stat. at L. 292, chap. 45), provided, in the thirty-sixth section, that, in case of a sale of real estate, and a surplus remaining after satisfying the tax, costs, etc., such surplus should be paid to the owner, or if he be not found, "then such surplus shall be deposited in the Treasury of the United States, to be there held for the use of the owner, or his legal representatives, until he or they shall make application therefor to the Secretary of the Treasury, who, upon such application, shall, by warrant on the Treasury, cause the same to be paid to the applicant." In United States v. Taylor, 104 U. S. 216 [26: 721], the owner did not apply for the surplus until more than six years had elapsed from the closing up of the sale and 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 with. out 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. "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 knowledge is brought home to him, and not before. "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 cogniza ble 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 pensation for damages sustained by the construction of the improvement. [No. 14.] the first instance there was a written prom- a ship, supra, this fact works no change in the [58]*rule. Whether the money to satisfy this liability was paid in by some third party or already held by the Treasurer; whether there was or not any prior liability on the part of the government, in each case there was a declaration by Congress that the money thus received or covered into the Treasury should there be held for the benefit of and subject❘ to the call of the owner, and no time was specified within which such call must be made. This was a distinct and separate promise, creating a new liability, and the claim accrued when this new liability matured. It matured when the claimant presented her checks and, calling for warrants, was refused them. The judgment is affirmed. GREEN BAY & MISSISSIPPI CANAL V. PATTEN PAPER COMPANY et al. (See S. C. Reporter's ed. 58-82.) Federal question-when sufficiently alleged 1. An explicit allegation that a claim is court. Water power incidentally created by the erection and maintenance of a dam and whose limits the river lies. vember 28, 1898. Decided No ERROR to the Supreme Court of the of that court reversing a judgment of the Su- Statement by Mr. Justice Shiras: This was a suit brought, in 1886, in the circuit court of Outagamie county, Wisconsin, by the Patten Paper Company and others, against the Kaukauna Water Company, the Green Bay & Mississippi Canal Company, and others. The object *of the pro- [59] ceeding, as set forth in the complaint, was to have determined what share or proportion of the flow of Fox river, where the same passes Islands Nos. 3 and 4 in township No. 21, north of range No. 18 east, is appurtenant and of right should be permitted to flow in the south, middle, and north channels of said river respectively, and to have the defendants restrained from drawing from said Fox river above the head of Island No. 4, and so that the same shall not come into the middle channel of said river and into the mill pond of the the one-sixth part thereof, or more than the plaintiffs, more water flow of said river than amount which by nature was appurtenant to and flowed in the south channel of said river. The scope of the investigation was widened by reason of the answer of the Green Bay & Mississippi Canal Company, which it was agreed and stipulated should have the effect of a cross bill in the action, and which asserted that any decree to be entered in the suit determining or adjudicating what share or proportion of the flow of the river should be permitted to flow in its several channels, should be made subject to the right of the canal company, by reason of the facts stated, to use all of the water power created by the gov ernment dam and improvements on the river. The principal facts disclosed in the case were the following: The Fox river is a navigable stream, and flows through township 21, north of range 18 east, in the county of Outagamie, Wisconsin, and in said river, below Lake Winnebago, there are and always have been rapids and abrupt falls. To permit navigation through or by said rapids and falls necessarily requires the building of dams, locks, and canals at great expense. By an act approved August 8, 1846, Congress granted to the state of Wisconsin, on its admission into the Union, a large amount of public lands for the vent the diversion of the surplus water power by grantees of the government, where he was express purpose of and in trust for improvgiven reasonable opportunity to obtain com-ing the navigation of the Fox and Wisconsin 4. A riparian owner on a stream on which INN rivers. The state accepted said grant of land | United States for such enlargement, on such for said purposes, and by an act of its legis- terms as may be approved by the governor lature, approved August 8, 1848, undertook for the time being of the state." the improvement of said rivers, and enacted, among other things, that "whenever a water power shall be created by reason of any dam [60] crected *or other improvements made on any of said rivers, such water power shall belong to the state, subject to the future action of the legislature.” One of the rapids in Fox river, around which it was necessary to secure slack water navigation by means of dams, locks, and canals, was commonly known as the Kaukauna rapids. The state adopted a plan and system for the construction of a dam and canal at said Kaukauna rapids, whereby there was to be built a low dam beginning on the south side near the head of the rapids, extending down stream, on or near the south bank of the river, across lots 8, 7, 6, and on to lot 5 of section 22, and thence extending at about a right angle with the south bank across the river, leaving an opening at the north end through which the water of the river could pass, and be conducted by a conduit or canal to a certain point at which should be placed a lock. The sales of lands granted by Congress not proving sufficient to carry on the work, the board of public works were authorized by the legislature to issue certificates of indebtedness, which were declared to be a charge upon the proceeds of the lands granted by Congress and upon the revenues to be derived from the works of improvement. July 7, 1870, Congress passed an act entitled "An Act for the Improvement of Water Communication between the Mississippi River and Lake Michigan by the Wisconsin and Fox Rivers." By this act Congress authorized the Secretary of War to ascertain the sum "which in justice ought to be paid to the Green Bay & Mississippi Canal Company as an equivalent for the transfer of all and singular its property and rights of property in and to the line of water communication between the Wisconsin river and the mouth of Fox river, including its locks, dams, canals, and franchises, or so much of the same as shall, in the judgment of said Secretary, be needed," and to that end he was authorized to "join with said company in appointing a board of disinterested and impartial arbitrators"-one to be selected by the Secretary, one by the company, and the third by the two arbitrators so selected. The act provided that in making their award the arbitrators should take into consideration the amount of money realized from the sale of lands granted by Congress to aid in the construction of said water communication, which amount should be deducted from the actual value thereof as found by the arbitrators. It was further enacted that no money should be expended on the improvement of the Fox and Wisconsin rivers until the Green Bay & Mississippi Canal Company should make and file with the Secretary of War an agreement, in writing, whereby it shall agree to grant and convey to the [62] United States its property and franchises upon the terms awarded by the arbitrators. By an act approved March 23, 1871, by the legislature of Wisconsin, the directors of the Green Bay & Mississippi Canal Company were authorized to sell and dispose of the rights and property of said company to the United States, and to cause to be made and executed all papers and writings necessary thereto as contemplated in the act of Congress. In July, 1853, the state legislature created a corporation under the name of "The Fox & Wisconsin Improvement Company," to which, by the second section thereof, were granted and transferred the uncompleted works of improvement, together with all and singular the rights of way, dams, locks, canals, water power, and other appurtenances of said works. The company agreed to pay the outstanding certificates, and forthwith undertook the work. Additional lands were granted by Congress in 1854 and 1855, to aid the state in the improvement of the Fox and Wisconsin rivers. The company subsequently executed a deed of conveyance of the works of improvement, the incidental water powers and all of the lands, in trust to apply all revenues derived from the improvement and the proceeds of sales of the lands to the payment of the unpaid certificates and of bonds issued by the company, and to the completion of the works. [61] *In 1864 the company failed, the deed of trust was foreclosed, and, in 1866, the property of the company, consisting of the works of improvement, the water powers and the lands, were sold pursuant to a decree of court entered February 4, 1864. The purchasers became incorporated under the name of the Green Bay & Mississippi Canal Company, The Secretary of War recommended to and that company was authorized, by the Congress that it should take the works of imthird section of an act of the legislature ap- provement and not the water powers and perproved April 12, 1866, to "enlarge and in-sonal property. Congress accordingly, by crease the capacity of said works and of the act approved June 10, 1872, made the necessaid rivers so as to make a uniform steam- sary appropriation, and the company, by its ship navigation from the Mississippi river deed of September, 1872, conveyed and grantto Green Bay, or to surrender the same to the ed to the United States "all and singular its Subsequently, in November, 1871, the arbitrators fixed the then value of all the property of the company at $1,048,070, and the amount realized from land sales, to be deducted therefrom, at $723,070, leaving a balance of $321,000 to be paid to the company. And, in anticipation that the Secretary might decide that the personal property and "the water powers created by the dams and by the use of the surplus waters not required for purposes of navigation," were not needed, these water powers and the water lots necessary to the enjoyment of the same, subject to all uses for navigation, were valued at the sum of $140,000, personal property $40,000, and the improvements $145,000. The plaintiff further alleged that the bridge constituted a part of its line of railway, and had no separate earning capacity, and no greater earning capacity than any other equal number of feet of its line of railway, and was used exclusively by it in transporting freight and passengers across the Ohio river to and from the states of West Virginia and Ohio; and that it was advised and believed that the bridge was an instrument of interstate commerce, and was not, as a separate structure from its line of railway, a proper subject for taxation by the state of West Virginia in the manner above set forth. court of the United States for the northern district of Illinois, to restrain the collection of a tax assessed by the city of Chicago upon his shares in the bank, alleging, among other things, that the tax was illegal and void, because the tax was not uniform and equal with taxes on other property as required by the Constitution of the state, and because the shares were taxable only at the domicil of the owner and therefore were not property within the jurisdiction of the state of Illinois. This court, speaking by Mr. Justice Field, without considering the validity of the objections to the tax, held that the bill could not be maintained, saying: "Assuming the The bill then charged that the tax upon tax to *be illegal and void, we do not think [381 the bridge was illegal and unjust, and con- any ground is presented by the bill, justifystituted a cloud upon the title to the bridge, ing the interposition of a court of equity to and that by reason of that clause of the Con- enjoin its collection. The illegality of the stitution of the United States, which gives tax and the threatened sale of the shares for Congress control over interstate commerce, its payment constitute of themselves alone the circuit court of the United States for no ground for such interposition. There the district of West Virginia was clothed must be some special circumstances attendwith authority and jurisdiction to restraining a threatened injury of this kind, distinand to prevent the assessment and collec-guishing it from a common trespass, and tion of this illegal and unjust tax; and bringing the case under some recognized head prayed for an injunction against its assess- of equity jurisdiction, before the preventive ment and collection, and for her relief. remedy of injunction can be invoked. It is The bill was sworn to March 18, 1895; and upon taxation that the several states chiefly was filed March 25, 1895, together with an rely to obtain the means to carry on their affidavit to the effect that, since the bill was respective governments, and it is of the utmodes adopted to enforce the taxes levied most importance to all of them that the should be interfered with as little as possible. Any delay in the proceedings of the officers, the taxes may derange the operations of the upon whom the duty is devolved of collecting government, and thereby cause serious detritherefore, allow its injunction to issue to rement to the public. No court of equity will, strain their action, except where it may be necessary to protect the rights of the citi zen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law." 11 Wall. 109, 110 [20: 66]. party of whom an illegal tax is collected has against the officer making the collection or ordinarily ample remedy, either by action the body to whom the tax is paid. Here such remedy existed. If the tax was illegal, the might have had his action, after it was paid, plaintiff protesting against its enforcement against the officer or the city to recover back the money, or he might have prosecuted either for his damages. No irreparable injury would have followed to him from its collection. Nor would he have been compelled to resort to a multiplicity of suits to determine his rights. His entire claim might have been embraced in a single action." 11 Wall. 112 [20: 67]. sworn to, the sheriff had levied upon one of for. A general demurrer to the bill was after- dissolved, and the bill dismissed. The at L. 828. Messrs. J. Dunbar and J. B. Sommerville, for appellant. Messrs. T. S. Riley, Thayer Melvin, [37] *Mr. Justice Gray, after stating the case, In Dows v. Chicago a citizen of the state of "The In the State Railroad Tax Cases this court, in a careful and thorough opinion delivered by Mr. Justice Miller, stated that "it has been repeatedly decided that neither the mere illegality of the tax complained of, nor its injustice nor irregularity, of themselves, give the right to an injunction in a court of equi- [39] ty;" referred to section 3224 of the Revised Statutes, which provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court;" and said that "though this was ANN intended to apply alone to taxes levied by the | pany under a statute of the state of TennesUnited States, it shows the sense of Congress of the evils to be feared if courts of justice could, in any case, interfere with the process of collecting the taxes on which the government depends for its continued existence." The court then quoted from Dows v. Chicago, and Hannewinkle v. Georgetown, above cited, and proceeded as follows: "We do not propose to lay down in these cases any absolute limitation of the powers of a court of equity in restraining the collection of illegal taxes. But we may say that, in addition to illegality, hardship, or irregularity, the case must be brought within some of the recognized foundations of equitable jurisdiction; and that mere errors or excess in valuation, or hardship or injustice of the law, or any grievance which can be remedied by a suit at law, either before or after payment of taxes, will not justify a court of equity to interpose by injunction to stay collection of a tax. One of the reasons why a court should not thus interfere, as it would in any transaction between individuals, is that it has no power to apportion the tax or to make a new assessment, or to direct another to be made by the proper officers of the state. These officers, and the manner in which they shall exercise their functions, are wholly beyond the power of the court when so acting. The levy of taxes is not a judicial function. Its exercise, by the Constitutions of all the states, and by the theory of our English origin, is exclusively legislative. A court of equity is, therefore, hampered in the exercise of its jurisdiction by the necessity of enjoining the tax complained of, in whole or in part, without any power of doing complete justice by making, cr causing to be made, a new assessment on any principle it may decide to be the right one. In this manner, it may, by enjoining the levy, enable the complainant to escape wholly the tax for the period of time complained of, though it be obvious that he ought to pay a tax if imposed in the proper manner. 92 U. S. 613-615 [23: 673, 674). [40] *In Union Pacific Railway Co. v. Cheyenne, in which the Union Pacific Railway Company obtained an injunction against the levy of a tax by the city of Cheyenne, the facts were peculiar. The plaintiff, owning many lots of land in that city, had paid a tax assessed on all its property by a board of equalization under a general statute of the territory of Wyoming, and had also been taxed by the city of Cheyenne under provisions of its charter which had been repealed by that statute; and the bill showed, as stated in the opinion, that the levy complained of "would involve the plaintiff in a multiplicity of suits as to the title of lots laid out and being sold; would prevent their sale; and would cloud the title to all its real estate." 113 U. S. 526, 527 [28: 1102]. In Shelton v. Platt, 139 U. S. 591 [35: 273], the president in behalf of himself and other members of an express company, a joint-stock company of the state of New York, filed a bill in equity in a circuit court of the United States in Tennessee to restrain the collection of a license tax upon the com see, alleged to be contrary to the Constitu- In the light of these decisions we proceed to an examination of the provisions of the Code of West Virginia of 1891, chap. 29, § 67, under which the tax upon the plaintiffs' bridge was assessed. That section requires every corporation, owning or operating a railroad wholly or partly within the state, to make, through |