formation. As to Mayor of York v. Pilkington, the court granted an order to stay proceedings because the question of right was depending in the court, in order to determine the right, and therefore it was reasonable they should not proceed by action or indictment until it was determined." If any case could be supposed in which a court of equity might look behind the formal proceeding, in the name of the state, to see that its promoters are parties to the case pending in the court of equity, using the process of the criminal court, not to enforce the rights of the public, but to coerce the defendant to surrender in the civil case, it is sufficient to say that, in the present case, the indictment whose prosecution the circuit court sought to stay, appears to have been regularly found, and to assert an offense against a law of the state, the validity of which is not assailed. not cover such a case. The circuit court of the United States for the western district of Virginia could not, in the first instance, have taken jurisdiction of the offense charged in the indictment, nor can it, by a bill in equity, withdraw the case from the state court, or suspend or stay its proceedings. In both of the injunctions pleaded in answer to the return of the sheriff the attorney of the commonwealth of Virginia for Wythe county was named as such, and was thereby prohibited from all further prosecution of the indictment pending in the county court of Wythe county in the name of the Commonwealth of Virginia v. H. G. Wadley, charged with *embezzlement of the funds of[169] the Wytheville Insurance & Banking Company. No case can be found where an injunction against a state officer has been upheld where it was conceded that such officer was proceeding under a valid state statute. In the present case the commonwealth attorney, in the prosecution of an indictment found under a law admittedly valid, represented the state of Virginia, and the injunctions were therefore in substance injunctions against the state. In proceeding by indictment to enforce a criminal statute the state can only act by officers or attorneys, and to enjoin the latter is to enjoin the state. As was said in Re Ayres, 123 U. S. 443, 497 [31: 216, 227]: "How else can the state be forbidden by judicial process to bring actions in its name, except by constraining the conduct of its officers, its attorneys, and its agents And if all such officers, attorneys, and agents are personally subjected to the process of the court, so as to forbid their acting in its behalf, how can it be said that the state itself is not subjected to the jurisdiction of the court as an actual and real defendant?" It is further contended, on behalf of the appellee, that even if the injunctions in the equity causes, restraining the proceedings in the county court, were erroneous, they could not be attacked collaterally by this appeal in the habeas corpus case. The obvious answer to this is that this court is dealing only with the question of the jurisdiction of the court below. To the return of the sheriff, justifying his detention of the prisoner by setting up the order of the county court, the petitioner, Wadley, by way of reply, pleaded the injunctions. This, of course, raised the question of the validity of those injunctions. If they were void, they conferred no jurisdiction upon the circuit court to enforce them as against the officers and process of the state court. Again, it is urged that the indictment had been improperly found by reason of the admission before the grand jury of Wadley's deposition in the civil case. But, even if what passed in the grand jury room can be inquired into on a writ of habeas corpus, and this we do not concede, the remedy for such[170] misconduct must be sought in the court having control and jurisdiction over the proceedings. The fallacy in the argument of the appellee in the present case is in the assumption that the same right was involved in the criminal case in the state court and in the equity case pending in the Federal court. But it is obvious that the civil liability of Wadley to indemnify the plaintiffs in the equity suits, by reason of losses occasioned by his misconduct as an officer of the bank, is another and very different question from his criminal liability to the commonwealth of Virginia for embezzlement of funds of the bank. There might well be different conclusions reached in the two courts. A jury in the criminal case might, properly [168]enough, conclude that, however foolish and unjustifiable the defendant's conduct may have been, he was not guilty of intentional wrong. The court, in the equity case, might rule that the defendant's disregard of the ordinary rules of good sense and management was so flagrant as to create a civil liability to those thereby injured, without viewing him as a criminal worthy of imprisonment. The verdict and judgment in the criminal case, whether for or against the accused, could not be pleaded as res judicata in the equity suits. Nor could the conclusion of the court in equity as to the civil liability of Wadley, be pleadable either for or against him in the trial of the criminal case. Surely if, by reason of a compromise or of failure of proof, the court in equity made no decree against Wadley, the commonwealth of Virginia would not be thereby estopped from asserting his delinquencies under the criminal laws of the state. Nor would the court in equity be prevented, by a favorable verdict and judgment rendered in the state court, from adjudging a liability to persons injured by the defendant's official misbehavior. And this reasoning is still more cogent where the respective courts belong one to the state and the other to the Federal system. Embezzlement by an officer of a bank organized under a state statute is not an offense which can be inquired into or punished by a Federal court. Such an offense is against the authority and laws of the state. The So, too, any offense to the dignity or aujudicial power granted to their courts by thority of the circuit court, by the misuse the Constitution of the United States does of its records or papers, by its suitors or NEW MEXICO v. UNITED STATES TRUST Co. 1898. their counsel, can be corrected by that court We are of opinion, then, that a court of Statement by Mr. Justice McKenna: The case was submitted upon the following Therefore the judgment of the circuit court of the United States for the western district of Virginia, discharging said H. G. Wadley from the custody of the said I. R. Harkrader, sheriff of Wythe county, Virginia, and from the custody of said county court of Wythe county is hereby Reversed and the cause is remanded to that court with directions to restore the custody of said W. G. Wadley to the sheriff of Wythe County, Virginia. "For the purposes of the hearing to be had upon the intervening petition of the territory of New Mexico, in the above-entitled cause, and answers thereto of C. W. Smith, the receiver of the Atlantic & Pacific Railroad Company, and the United States Trust Company, it is hereby stipulated and agreed, by and between said above-named parties, that [172] the following facts shall be accepted and received by the judge or court in determining the questions involved as the facts in the case. [171] TERRITORY OF NEW MEXICO, Appt., UNITED STATES TRUST COMPANY of New York, and C. W. Smith, Receiver of the Property of the Atlantic & Pacific Railroad Company. "That on and prior to January 1, 1892, the Atlantic & Pacific Railroad Company, under the provisions of its charter, definitely located its line of road and right of way through Bernalillo county, which said right of way so located involved all necessary grounds for station buildings, workshops, depots, machine shops, switches, side tracks, turn tables and water stations. That upon said right of way so located through the city of Albuquerque, in said county, was definitely located necessary grounds for station buildings, workshops, depots, machine shops, side tracks, turn tables and water stations; and there was also located upon said right บ. (See S. C. Reporter's ed. 171-186.) Exemption from taxation of a right of way of of way at the Atlantic & Pacific Junction at Chaves or Mitchell, at Coolidge, at Wingate, a railroad. at Gallup, and at Manuelito, necessary grounds for station buildings, work shops,. depots, machine shops, switches, side tracks, turntables, and water stations. "That thereafterwards and prior to 1893 there was built and constructed upon said right of way by the Atlantic & Pacific Railroad Company from a point of junction with the Atchison, Topeka, & Sante Fe Railroad Company at Isleta, fifteen miles south of Albuquerque, a railroad along said right of way, from said junction point to the Colorado river, in the territory of Arizona; that the Atlantic & Pacific Railroad Company has, under an agreement with the Atchison, Argued October 25, 26, 1898. Decided De- Topeka & Santa Fé Railroad Company, occupied and used the tracks of the last-named cember 5, 1898. company between the junction of the two the of the railroads The right of way through the public lands for 100 feet each side of a railroad, including all recessary grounds for station buildings, workshops, depots, machine shops, switches, side tracks, turntables, and water stations, which Is exempt from taxation within the territories of the United States, under the act of Congress of July 27, 1866, does not mean the right of passage merely, but is real estate of corporeal quality, and the exemption includes all that is erected upon it. [No. 106.] Court of the Territory of New Mexico reversing an order of the District Court for Bernalillo County, that the receiver of the Atlantic & Pacific Railroad Company pay taxes due upon station houses and other improvements in said county and decreeing that said assessments were illegal and void. Decree affirmed. querque as and for the railroad of the Atlan tic & Pacific Railroad Company to the extent that its business required the use and operation of such railroad for itself; or, in other words, under contract between the two companies the railroad of the Atchison, Topeka, & Santa Fé Railroad Company through the city of Albuquerque to the junction at Isleta, 407 a distance of about fifteen miles, is jointly used by the two railroad companies; said railroad running through the reservations for machine shops, etc., aforesaid, of the At[173]lantic & Pacific Railroad Company at *Albuquerque; that the right of way so located by the Atlantic & Pacific Railroad Company and upon which it built its railroad, as aforesaid, runs through Bernalillo county, and is situated in Bernalillo county as follows: "Commencing at the A. & P. Junction referred to, it runs thence in a westerly direction 4 miles 3,780 feet to the division line between Bernalillo county and Valencia county, and then after crossing a portion of Valencia county at a point known as station 5,247 it again runs through Bernalillo county 68 miles and 44 feet to the west line of the county of Bernalillo, being the west line of the territory of New Mexico; which said right of way, outside of the reservation for station grounds, etc., was located, and is of the width of 200 feet, being 100 feet on each side of the center of the railroad track located thereon. "That in due time the former receivers of the property of the Atlantic & Pacific Railroad Company appointed by this court returned to the assessor of Bernalillo county as property belonging to said railroad company, taxable in said county, certain property, which was and is described in said returns as follows, to wit: "List of personal property belonging to, claimed by, or in the possession or under the control of the receivers of the Atlantic & Pacific Railroad Company (western division), a corporation created by act of Congress, having its principal place of business at Albuquerque, New Mexico. "The line of its road running through the counties of Bernalillo and Valencia in said territory of New Mexico; thence through the counties of Apache, Navajo, Coconino, Yavapai, and Mojave, in the territory of Arizona, to the eastern boundary line of the state of California; thence through the counties of San Bernardino and Kern, in said state, to the western end of said line, and its terminus at Mojave, in said county of Kern, a total distance of 805.86 miles, the total mileage of said line owned by said company in said territory of New Mexico being 166.6, of which 73.142 are in Bernalillo county, and 93.458 miles are in Valencia county. "And the receivers of the property of said [174]company *make a full report of all its personal property as follows, to wit: All the locomotives, passenger coaches, express and mail cars. cabooses, box, fiat, and coal cars, push cars, hand cars, and all other equipments owned, possessed, or used by said receivers or said company upon the entire line aforesaid. or Track tools, and all other personal property not having its situs domicil in some other state or territory, including office and station furniture, law library, books, stationery, supplies and material, etc., at Albuquerque. Mitchell, Coolidge, Wingate, Gallup, and Manuelito.. Personal property within the city lim its of Albuquerque. Personal property within the city limits of Gallup.. "That the above and foregoing was all the "That the said assessor at the same time "That these exhibits show precisely the descriptions of property entered by the assessor, the penalties added, and the values and also the taxes levied thereon. 'Exhibit 3' also shows the description of the property as returned by the receivers. "That all the property so placed upon the assessment roll by the assessor, outside of that returned by the receivers, was placed upon said assessment roll without the knowledge or consent of the receivers, or of said railroad company; that the entire property placed upon the assessment roll by said assessor, outside of the property returned by the receivers, constituted and constitutes an actual part and portion of the roadbed and railroad track thereon situated on the right of way of the Atlantic & Pacific Railroad Company in Bernalillo county, in the territory of New Mexico, and constitutes the railroad used and occupied by the Atlantic & Pacific Railroad Company under its charter and in accordance with the provisions thereof; and the machine shops, station buildings, water tanks, section houses, and other buildings of like character connected with and a part of the machinery used in the operation of said railroad; that each and every item of property described in the assessments so placed upon the said assessment roll, outside of the property returned by the receivers, is property that is actually and permanently attached to the right of way and station grounds of the Atlantic & Pacific Railroad 78,000 Company, and constitutes an actual part and portion of the superstructure placed upon 200 000 said right of way by said railroad company 5,000 for its railroad and for its machine shops, $452,960 turntables, side tracks, switches, water tanks, station buildings, and other buildings of the same class and character actually used and needed in the operation of said railroad, and that no part of the same was, at the time of the placing of said assessment upon said [176]assessment rolls by the assessors, detached from the actual right of way and station grounds of said railroad company; but, on the contrary, was firmly affixed thereto; that it was described as it was by the assessor in placing the same upon the assessment roll for the purpose of escaping the exemption from taxation contained in the second section of the act of Congress approved July 27, 1866, known as the charter of the Atlantic & Pacific Railroad Company, the assessor desiring to assess everything placed on the right of way separate from the right of way, no matter how permanently attached and affixed to the right of way. the court permission to take such an appeal. The order appealed from was reversed upon hearing before the supreme court of the territory, the court determining that the additional assessments placed upon the rolls were illegal and void. An application was made for a rehearing, which the court denied, and an appeal was taken to this court. †Sec. 1. And The sections of the act of July 27, 1866, with which we are concerned, are inserted in the margin; † also sections 2807, 2822, 2834, said corporation is hereby authorized and empowered to lay out, enjoy a continuous railroad and telegraph line, locate, and construct, furnish, maintain, and with the appurtenances, namely, beginning at or near the town of Springfield, in the state of Missouri, thence to the western boundary line of said state, and thence by the most eliglble railroad route as shall be determined by sald company to a point on the Canadian river; thence to the town of Albuquerque, on the River Del Norte, and thence, by way of the Agua Frio or other suitable pass, to the head waters of the Colorado Chiquito, and thence along the thirtyfifth parallel of latitude as near found most suitable for a railway route to the as may be Colorado river, at such point as may be selected by said company for crossing; thence by the most practicable and eligible route to the Pacific. The said company shall have the right to construct a branch from the point at which the road strikes the Canadian river eastwardly, along the most suitable route as selected, to a point in the western boundary line of Arkansas at or near the town of Van Buren. And the said company is hereby vested with all the powers, privileges, and immunities necessary to carry into effect the purposes of this act as herein set "That during the year 1893 there were no receivers in possession of said property, and that said railroad was being operated by the railroad company itself, and, if any property was omitted to be returned for taxation which ought to have been returned to the assessor of Bernalillo county, it was the fault and neglect of the railroad company itself, and not the fault and neglect of the receivers afterwards appointed. "That at Albuquerque, upon the reservations and station grounds, there were situated the largest machine shops of the said railroad company, the general office building and such buildings as pertain to the headquarters of a railroad company; said buildings and reservation constitute the head-forth. quarters of the western division of the Atlantic & Pacific Railroad Company, and, right of way through the public lands be, and since the appointment of receivers, of the receivers operating the same. Sec. 2. And be it further enacted, That the the same is hereby, granted to the said Atlan- of. Said way is granted to said railroad to the of the United States. Sec. 3. And be it further enacted, That there be, and hereby is, granted to the Atlantic & Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific Coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway and its branches, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever, on the "That the assessor, in placing each of these three assessments upon the assessment rolls as stated, added to the actual value of the property one fourth of such value, as a penalty for the failure on the part of the receiver to return such property for taxation. "That in 1893 the railroad company, and in 1894 and 1895 the receivers, omitted all property that was firmly and fixedly at tached to the right of way of said railroad company and to station grounds, under the honest belief that the same constituted a part of the right of way, and was exempt from taxation." Subsequently, the case came on to be heard, upon the intervening petition of the [177]territory and the answer thereto of the United States Trust Company and of the receiver, C. W. Smith, and the agreed statement of facts. Upon the hearing the judge of the district court ordered the receiver to pay to the treasurer of the county of Bernalillo the sum of forty-three thousand two hundred and fifty-four dollars and seventy cents ($43,254.70), the amount ascertained by a special master to be the aggregate of the taxes levied upon the additional assessments and penalties. An ap: peal was taken from this order by the United States Trust Company, and also by the receiver. C. W. Smith, who had obtained from claims or rights, at the time the line of said bers.. Sec. 5. And be it further enacted, That sald in a substantial and workmanlike manner, with all the necessary draws, culverts. bridges, via- ignated by odd numbers, not more than ten *Mr. Justice McKenna delivered the opin-[181] tions and not including the reserved num- The right of way is granted to the extent and 2835 of the Compiled Laws of 1884 of[180] New Mexico relating to taxation.‡ Sec. 7. And be it further enacted, That the said Atlantic & Pacific Railroad Company be, and is hereby, authorized and empowered to enter upon, purchase, take, and hold any lands or premises that may be necessary and proper for the construction and working of said road not exceeding in width one hundred feet on each side of the line of its railroad, unless a greater width be required for the purpose of excavation or embankment; and also any lands or premises that may be necessary and proper for turnouts, [179]*standing places for cars, depots, station houses, or any other structures required in the construction and working of said road. And the said company shall have the right to cut and remove trees and other material that might, by falling, encumber its roadbed, though standing or being more than two hundred feet from the line of said road. And in case the owner of such lands or premises and the said company cannot agree as to the value of the premises taken, or to be taken, for the use of said road, the value thereof shall be determined by the appraisal of three disinterested commissioners who may be appointed upon application by either party to any court of record in any of the territories in which the lands or premises to be taken lie; and said commissioners in their assessment of damages shall appraise such premises at what would have been the value thereof if the road had not been built. And upon return into court of such appraisement, and upon the payment into the same of the estimated value of the premises taken for the use and benefit of the owner thereof, said premises shall be deemed to be taken by said company, which shall thereby acquire full title to the same for the purposes aforesaid. Sec. 8. And be it further enacted, That each and every grant, right, and privilege herein are so made and given to and accepted by said Atlantic & Pacific Railroad Company, upon and subject to the following conditions, namely: That the said company shall commence the work on said road within two years from the approval of this act by the president, and shall complete not less than fifty miles per year after the second year, and shall construct, equip, furnish, and complete the main line of the whole road by the fourth day of July, Anno Domini eighteen hundred and seventy-eight. Sec. 9. And be it further enacted, That the and Thomus N. Wilkerson for appellant. Messrs. Victor Morawetz, C. N. Sterry, United States make the several conditional Sec. 10. And be it further enacted, That all people of the United States shall have the right to subscribe to the stock of the Atlantic & Pacific Railroad Company until the whole capital named in this act of Incorporation is taken up by complying with the terms of subscription. Sec. 11. And be it further enacted, That said Atlantic & Pacific Railroad, or any part thereof, shall be a post route and military road, subject to the use of the United States for postal, military, naval, and all other government service, and also subject to such regulations as Congress may impose restricting the charges for such government transportation. Sec. 20. And be it further enacted, That the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the government at all times, but particularly in time of war, the use and benefits of the same for postal, military, and other purposes, Congress may at any time, having due regard for the rights of said Atlantic & Pacific Railroad Company, add to, alter, amend, or repeal this act. $2807. The terms mentioned in this section are employed throughout this chapter in the sense herein defined: First. The term "real estate" includes all lands within the territory to which title or right to title has been acquired: all mines, minerals, and quarries, in and under the land, and ali rights and privileges appertaining thereto and improvements. Second. The term "improvements" includes all buildings, structures, fixtures, and fences erected upon or fixed to land, whether title has been acquired to said land or not. Third. The term "personal property" includes everything which is subject of ownership not included within the term "real estate." Fourth. The term "credit" includes every |
