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and the board refused to strike the lands from the assessment roll, and the taxes were assessed and levied against the lands with the other lands of the county; that the tax proceedings were in manner and form in all respects as required by the laws of Montana; that the taxes amounted to $3,000, and that the treasurer of the county was proceeding to collect the same by sale, and would so collect the same if not enjoined and restrained by the order of the court.

As a ground of relief by injunction the bill alleges: "And your orators show that said tax levies cloud the title to said described lands, and impair the value thereof as an asset in the hands of your orators; that said certificates and deeds when issued, as your orators believe and show they will be, will constitute further clouds upon the title thereto. That if said lands be sold a multiplicity of suits will be necessary to quiet the title thereto and to remove the clouds thereby created."

Among the things which were asked to be adjudged at the final hearing were:

quantity of unoccupied and unappropriated
agricultural lands, in odd sections, nearest to
the line of said road, may be selected as
above provided; and further provided, that
the word 'mineral,' when it occurs in this act,
shall not be held to include iron or coal."

Section four provides for the issuing of
patents on the completion and acceptance of
each twenty-five consecutive miles of said
railroad and telegraph line.

The assignment of errors is as follows:
"The said court held that the lands de-
scribed in the bill of complaint in said action
were subject to taxation, although it appears
from the pleadings and stipulation in said
cause:

"(a) That said lands were at the time of
the assessments and tax levies complained of
unpatented, and were involved in contests
pending before the Interior Department over
questions of fact between said railway com-
pany and various settlers and the United
States.

*"(b) Although it further appears from[596] the pleadings and stipulation in said cause "1. That the lands described in schedule that said lands were not, at the time of the 'A' hereunto annexed, and each and all there- assessment and tax levies complained of, of, were not subject to assessment and taxa-identified and defined as lands passing under tion by said county of Jefferson or state of the act of Congress approved July 2, 1864, Montana for the year 1894, and until the so as to be segregated from the public lands United States shall issue to said railroad of the United States. company patents therefor.

"2. That it may be ordered, adjudged, and decreed that said pretended and attempted assessments and tax levies were and are null and void, and constitute a cloud upon the title to said described lands."

Section three of the act of July 2, 1864, is as follows:

"(c) Although it further appears from the pleadings and stipulations in said cause that the grantee, under the act of Congress approved July 2, 1864, entitled 'An Act Granting Lands to Aid in the Construction of a Railroad and Telegraph Line from Lake Superior to Puget Sound, on the Pacific Coast, by the Northern Route,' was not entitled to patents for said lands at the time of the assessment and tax levies complained of.

"The said court failed and refused to hold that the lands described in the complaint were not at the time of the assessment and tax levy complained of subject to assessment or taxation.

"That there be, and hereby is, granted to the Northern Pacific Railroad Company, its "(d) Although it appears from the pleadsuccessors, and assigns, for the purpose of aiding in the construction of said railroad ings and stipulation in said cause that the [595]and telegraph line to the Pacific Coast, United States possessed at the time of the asevery alternate section of public sessment and tax levies complained of an inland, not mineral, designated by odd num-terest in said lands, and each and all therebers, to the amount of twenty alternate sec of, and that the said lands were subject to tions per mile, on each side of said railroad exploration for minerals as public lands of line, as said company may adopt, through the the United States. 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 line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed and a plat thereof filed in the office of the Commissioner of the General Land Office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied, by homestead settlers, or pre-empted or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections. vided, further, that all mineral lands be, and the same are hereby, excluded from the operations of this act, and in lieu thereof a like

Pro

"The said court entered an order reversing the decree of the United States circuit court for the district of Montana, and remanded said cause with an order to the United States circuit court for the district of Montana to enter a decree in favor of the above-named appellant."

Messrs. C. W. Bunn, A. B. Browne, and A. T. Britton for appellant.

Mr. C. B. Nolan, Attorney General of Montana, for appellee.

*Mr. Justice McKenna delivered the[596] opinion of the court:

The averments in the bill of complaint and the stipulation of facts show a controversy[597] between the railroad company and the Interior Department as to the character of the 172 U. S.

lands, whether mineral or nonmineral, taxed | party without anything more to be paid or by the state of Montana; and the company any act to be done going to the foundation avers "that at the time of said attempted as of his right. In the first case the court said sessments and tax levies said lands two acts remained to be done which might had not been and are not now certified or pat- wholly defeat the right to the patent: (1) ented to said railroad company, and the said the payment of the cost of surveying; (2) a lands were not ascertained or determined to right of pre-emption which would accrue if be a part of the lands granted to said com- the company did not dispose of the lands pany, nor were they segregated from the pub- within a certain time. The dependency of lic lands of the United States, and the said the right of taxation on the first condition railroad company had and has but a poten- was affirmed with the principle announced in tial interest therein." And part of the re- Union P. Railway Company v. McShane. lief prayed for was "that the lands be ad- The dependency of the right of taxation on judged not subject to assessment and taxa- the second ground was expressly overruled. tion by said county of Jefferson or by the Embarrassment to the title of the United state of Montana for the year 1894, and un-States by a sale of the land for taxes seems til the United States shall issue to said rail- to have been the concern and basis of those road company patents therefor."

cases. This embarrassment was relieved, A similar claim was denied by the circuit and Congress permitted taxation by the act court of appeals for the ninth circuit, in of July 10, 1886. By that act it is provided: Northern Pacific Railroad Co. v. Wright, 7"That no lands granted to any railroad corU. S. App. 502, and by this court in Central poration by any act of Congress shall be exPacific Railway Company v. Nevada, 162 U. empted from taxation by states, territories, S. 512 [40: 1057]. It is, however, now con- and municipal corporations on account of the ceded that the railroad has a taxable inter-lien of the United States upon the same for est, counsel for appellant saying: the costs of surveying, selecting, and conveying the same, or because no patent has been issued therefor; but this provision shall not apply to lands unsurveyed: Provided, That any such land sold for taxes shall be[599] taken by the purchaser subject to the lien for costs of surveying, selecting, and conveying, to be paid in such manner by the purchaser as the Secretary of the Interior may by rule provide, and to all liens of the United States, all mortgages of the United States, and all rights of the United States in respect to such lands: Provided further, That this act shall apply only to lands situated opposite to and coterminous with completed portions of said roads and in organized counties: Provided further, That at any sale of lands under the provisions of this act the United States may become the preferred purchaser, and in such case the land sold shall be restored to the public domain and disposed of as provided by the laws relating thereto." 24 Stat. at L. 143, chap. 764.

"The question for decision is not whether the railway company has any interest in its grant, or in the lands in question, which may be subjected to some form of taxation; but whether the lands themselves are taxable; whether the present assessment, which is on the lands themselves, can be sustained. We may well concede that the taxing power is broad enough to reach in some form the interest of the railway company in its grant; that interest becomes confessedly a vested interest upon construction of the road. It then becomes property, and may well be held subject to some form of taxation.

"But here the legislature authorizes a tax upon, and the assessor makes an assessment upon, the land itself by specific description; the whole legal title to each parcel being specifically and separately assessed. When the plain fact is, that neither the assessor nor the railway company can place its hand on a single specific parcel and say whether it belongs to the company or to the United States." [598] *The question which was submitted, therefore, by the stipulation, namely, "whether the lands described in the bill were subject to taxation under the laws of the United States and of the State of Montana,"-if not evaded by the concession of appellant, has changed its form; but even in the new form it seems to have the same foundation as the contention rejected in the Nevada case, supra, that because title may not attach to some of the lands it does not attach as to any. Whether it has such foundation we will consider.

In Kansas P. Railroad Company v. Prescott, 16 Wall. 603 [21: 373]; Union P. Railroad Company v. McShane, 22 Wall. 444 [22: 747]; and Northern Pacific Railway Company v. Traill County, 115 U. S. 600 [29: 4771,-it was decided that lands sold by the United States might be taxed before they had parted with the legal title by issuing a patent; but this principle, it was said, must be understood to be applicable only to cases where the right to the patent was complete, and the equitable title was fully vested in the

This act was interpreted in Central Pacific Railroad Co. v. Nevada, supra. The lands involved were classified in the opinion as follows: (1) Those patented; (2) those unsurveyed; (3) those surveyed but unpatented, upon which the cost of surveying had been paid; and (4) like lands upon which the cost of survey had not been paid. Applying the statute, Mr. Justice Brown, speaking for the court, said: "The principal dispute is with regard to the fourth class. view of the statute, it is difficult to see how these lands, which are the very ones provided for by the statute, can escape taxation if the state chooses to tax them."

In

This case establishes that the state may tax the surveyed lands, mineral or agricultural, within the place limits of the grant, and there is nothing in the case or its principle which limits the assessment to an interest less than the title; that distinguishes the lands from a claim to them. The statute of Nevada defined the term "real estate" to include "the ownership of, or claim to, or possession of, or right of possession to, any

lands;" and the supreme court of the state | title or nothing. In response to its obligahad decided that to constitute a possessory tions to the state it must say which. If it claim actual possession was necessary, and, have the title to any of the lands, this title on this account, distinguished in some way cannot be diminished to a claim or an intersurveyed from unsurveyed lands. It was est because it has not or may not have title urged that the distinction was not justified, to others. If there is uncertainty, it must and that the necessity of actual possession be resolved by the railroad. Suppose, to use applied alike to both kinds and exempted the language of counsel, "Neither the assesboth kinds from taxation, and hence it was sor nor the railway company can place its [600]insisted there was nothing to "tax unless the hand on a single specific parcel, and say title was taxed, and that this could not be whether it belongs to the company or to the done under the decisions of this court. To United States." We nevertheless say again, this contention the opinion replied that how as we said by the Chief Justice in Northern the interest of the railroad should be defined Pacific Railroad Co. v. Patterson, 154 U. S. was not a Federal question, nor did inapti- 130 [38: 934]: "If the legal or equitable title tude of definition by the supreme court of the to the lands or any of them was in the railstate or in the application of the definition road, then it was liable for the taxes on all raise a Federal question. "Taxation of the or some of them; and the mere fact that the lands by the state," it was said, "rested upon title might be in controversy would not apsome theory that the railroad had a taxable pear in itself to furnish sufficient reason why interest in them. What that interest was the railroad should not determine whether does not concern us so long as it appears that, the lands or some of them were worth paying so far as Congress is concerned, express au- taxes on or not." thority was given to tax the lands.'

If this case leaves us any concern it is only to inquire what assessable interest passed by the grant. It is not necessary to detail the cases in which this court has held that railroad land grants are in præsenti of land to be afterwards located. Their principle reached the fullest effect and application in Deseret Salt Company v. Tarpey, 142 U. S. 241 [35: 999], in which it was held that the legal title passed by such grants as distinguished from merely equitable interests, and an action of ejectment was sustained by a lessee of the Central Pacific Railroad Company before patent was issued. But in Barden v. Northern Pacific Railroad Company, 154 U. S. 288 [38: 992], in a similar action, recovery was denied to the Northern Pacific Railroad Company on the ground that mineral lands were not conveyed by the grant to it, but were "specifically reserved to the United States and excepted from the operations of the grant."

The accommodation of these cases is not difficult. In the Barden Case there was a concession that the land was mineral, and there was an attempted recovery of valuable

That the Barden Case does not preclude state taxation of the lands is also manifest from its expression. Mr. Justice Field, who delivered the opinion of the court, in answer to the contention that its doctrine would have that effect, said: "So also it is said that the states and territories through which the road passes would not be able to tax the property of the company unless they could tax the whole property, minerals as well as lands. We do not see why not. The authority to tax the property granted to the company did not give authority to tax the minerals which were not granted. The property could be appraised without including any consideration of the minerals. The value of the property, excluding the minerals, could be as well estimated as its value *including them. The[602) property could be taxed for its value to the extent of the title which is of the land."

The averment of the answer is that this was done; that the lands were assessed and taxed for their value as agricultural lands without including the minerals in them. The replication put this in issue, but the stipulation of facts does not explicitly notice it, but probably was intended to cover it by the agreement that the assessment was made in the manner and form required by the laws of

Montana.

ores. In the Deseret Case there was no such concession, and the primary effect of the grant prevailed. In the case at bar there is no such concession, and the primary effect of We are referred to the act of Congress of the grant must prevail. There is no pre- February 26, 1895, chap. 131, entitled "An sumption of law of what kind of lands the Act to Provide for the Examination and grant is composed. Upon its face, therefore, Classification of Certain Mineral Lands in the relation of the railroad to every part of it the States of Montana and Idaho" (28 Stat. is the same, and on the authority of Deseret Salt Co. v. Tarpey ejectment may be brought at L. 683), as strengthening the contention for every part of it. The action, of course, of appellants. We do not think it does. It [601]may be defeated, but it may prevail; was passed after the time at which the validtitle which may prevail for the company in ity of the assessment complained of must be ejectment surely may be attributed to it for determined. Besides, it does not purport to taxation, to be defeated in the latter upon the define the rights of the railway company in same proof or concession by which it would any particular with which we are now conbe defeated in the former. An averment that cerned. It furnishes the Secretary of the Inthere is a controversy about the character terior with another instrumentality,-not of lands not yielded to, an expression of doubt bringing the lands to a different judgment, about it not acted on, is not sufficient. This but to an earlier judgment. view does not bring the railroad company to an unjust dilemma. The company has the

and

a

Discovering no error in the decree of the Circuit Court of Appeals, it is affirmed.

Mr. Justice Brewer, Mr. Justice Shiras, Mr. Justice White, and Mr. Justice Peckham dissented.

CONNECTICUT MUTUAL LIFE INSUR-
ANCE COMPANY, Plff. in Err.,

v.

LINDA Y. SPRATLEY.

(See S. C. Reporter's ed. 602-622.)

Service of process upon agent of foreign corporation what agent may be served—corporation doing business within the state contract with the state.

1. Service of process upon an agent of a foreign corporation doing business in a state must be upon some agent so far representing the corporation in the state that he may properly be held in law an agent to receive such process in behalf of the corporation; but an express authority to receive process is not always necessary.

2. A nonresident agent of a foreign insurance company, who comes into a state to investigate a claim for a loss, with power to compromise it within stated terms, leaving him certain discretion as to the amount, when he is not a mere special agent for that particular case, but is employed generally on a salary, to act in all cases of that kind, sufficiently represents the company for the service of process in an action on the claim he is Investigating, where the company is doing

business within the state.

3. A foreign insurance company which assumes to withdraw from a state in which it has been issuing policies, and thereafter refuses to take any new risks or issue any new polIcles therein, but continues to collect premiums on its outstanding policies and to pay losses arising thereunder, is still doing business within the state within the meaning of the statute respecting service of process upon an agent.

4.

A foreign insurance company availing itself of the permission to do business within the state under the provisions of the Tennessee act of 1875 giving permission therefor on condition that the company appoint the secretary of state as its agent to receive process, does not thereby create a contract with the state which will prevent the state from thereafter passing another statute in regard to the service of process which will be applicable to such company.

[No. 183.]

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The plaintiff in error filed its bill against the defendant in error in the chancery court of Shelby county, Tennessee, for the purpose of enjoining her from taking any proceedings under a judgment by default which she had obtained in the state of Tennessee, against the corporation, upon certain policies of insurance, and also for the purpose of obtaining a decree pronouncing the judgment void[604] and releasing the corporation therefrom.

The ground set forth in the bill, and upon which the complainant sought to have the judgment against it set aside, was that the complainant was a nonresident of the state of Tennessee, had no office or agent there at the time the process was served, and was doing no business in the state, and the person upon whom the process in the action had been served in behalf of the corporation was not its representative in the state, and no process served upon him was in any way effectual to give jurisdiction to the state court over the corporation. The bill also alleged that the judgment, if enforced, would result in taking complainant's property without due process of law, and would violate the Fifth and Fourteenth Amendments of the Constitution of the United States.

The defendant in error herein appeared and answered the bill, and alleged that the judgment she had obtained was a valid and proper judgment, and she denied the allegation in the bill that complainant was doing no business in the state at the time of the service of process, and alleged, on the contrary, that it was then doing business therein. She asked that the preliminary injunction theretofore granted should be dissolved.

The court of chancery upon the trial gave judgment in favor of the complainant, and decreed that the preliminary injunction granted in the cause should be made perpetual. The defendant appealed to the supreme court of the state, where the decree of the court of chancery was reversed, the injunction dissolved, and a judgment granted the defendant in error on the bond executed by the company in obtaining the injunction, for

Submitted January 3, 1899. Decided Janu- the amount of the original judgment, with

ary 30, 1899.

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of that court reversing the decree of the Chancery Court of Shelby County, Tennessee, granting a perpetual injunction against the enforcement by Linda Y. Spratley of a judgment against the Connecticut Mutual Life Insurance Company. The judgment of the Supreme Court was in favor of said Spratley for the amount of the judgment against the insurance company, with interest and costs. Affirmed.

See same case below, 99 Tenn. 322.

interest from its date, together with the
costs of the suit for the injunction. The
complainant thereupon brought the case here

In addition to the objection that the per-
son upon whom process was served was not
such a representative of the company that
service of process upon him was sufficient to
give the court jurisdiction, the company al-
leges that under the act of 1875, which will
be referred to hereafter, the company *ap-[605]
pointed an agent pursuant to its provisions,
and that any act subsequently passed relat-
ing to the service of process upon any other
than the person so appointed could not af-

fect the company, because such act would
impair the contract which it alleges was cre-
ated between the state and the company
when it appointed an agent, by its power of
attorney, pursuant to the provisions of such
act of 1875.

sured the life of Benjamin R. Spratley, the husband of the defendant in error, for the term of his life, in the sum of $5,000, for the[607) benefit of his wife, the defendant in error or, in case of her death before payment, to his children, etc. The company also insured The material facts are as follows: The the life of Mr. Spratley on the 25th day of corporation is a life insurance company in- February, 1893, in the sum of $3,000 in facorporated under the laws of, and having its vor of his wife and for her sole use and benprincipal office in, the state of Connecticut. efit, with other conditions not material here. It did a life insurance business in the state These policies were issued through the soof Tennessee from February 1, 1870, until licitation and by the procurement of the July 1, 1894. On March 22, 1875, the state agent of the company for the states of Tenof Tennessee passed an. act to regulate the nessee and Kentucky, and who had headbusiness of life insurance in that state, and quarters at Louisville, Kentucky. He came by section 12 of the act it was enacted that to Memphis and solicited Mr. Spratley to a company desiring to transact business by take the policies, and the application for any agent or agents in the state should file them was taken by such agent at Memphis. with the insurance commissioner a power of The defendant in error alleges in her answer attorney authorizing the secretary of state that the premiums were paid thereon in Tento acknowledge service of process for and in nessee up to the death of Mr. Spratley in behalf of such company at any and all times February, 1896, but that fact does not othafter a company had first complied with the erwise appear. It does appear that all prelaws of Tennessee and been regularly admit-miums had been paid at the time of the death ted, even though such company may subse of Mr. Spratley. quently have retired from the state or been excluded; and it was made the duty of the secretary of state, within five days after such service of process by any claimant, to forward by mail an exact copy of such notice to the company. Pursuant to that statute the company duly filed a power of attorney as required, and appointed therein the secretary of state to receive service of process, and that power of attorney the company

never in terms altered or revoked.

In 1887 the legislature of Tennessee passed an act, approved March 29, 1887, entitled "An Act to Subject Foreign Corporations to Suit in This State." The first section of this

act provided that any foreign corporation found doing business in the state should be subject to suit there, to the same extent that said corporations were by the laws of the state liable to be sued, so far as related to any transaction had in whole or in part within the state, or to any cause of action arising therein, but not otherwise. [606] *The second section provided that any corporation that had any transaction with persons or concerning any property situated in the state, through any agency whatever acting for it within the state, should be held to be doing business within the meaning of the act.

The third and fourth sections of the act are set forth in full in the margin.†

On July 1, 1894, the company ceased issuing any new policies in the state of Tennessee, and withdrew its agents from the state, and on July 21, 1894, notified the state insurance commissioner to that effect. It had, however, a number of policies, other than those issued on the life of Mr. Spratley, outstanding in the state at the time it withdrew (how many is not stated), and it continued to receive the premiums on these policies through its former agent for that state, and to settle, by payment or otherwise, the claims upon policies in that state as they fell

due.

The former agent resided in Louisville when he received payment of the premiums, and it does not appear that after July, 1894, he was in the state of Tennessee when any payment of premiums was made to him by Tennessee policy holders. He received these payments as agent of the company, and it recognized such payments as sufficient.

Mr. Spratley died in the city of Memphis,
in the state of Tennessee, on the 28th of Feb-
ruary, 1896, leaving his widow, the defend-
ant in error, surviving him. The two policies
were in force at the time of his death. The
company, being notified of the death of Mr.
Spratley, sent its agent to Memphis to act
under its instructions in the investigation
and adjustment *of the claim. Mr. Chaffee[608]
was the agent employed, and he had been em-
ployed in the service of the company since the
first day of July, 1887. The writing under

The company continued to do business in
the state after the passage of this act, and
on the 12th day of December, 1889, it in-which he was employed stated that the com

Sec. 3. Be it further enacted, That process may be served upon any agent of said corporation found within the county where the suit is brought, no matter what character of agent such person may be; and in the absence of such an agent it shall be sufficient to serve the process upon any person, if found within the county where the suit is brought, who represented the corporation at the time the transaction out of which the suit arises took place, or, if the agency through which the transaction was had be itsell a corporation, then upon any agent of that corporation upon whom process might have

been served if it were the defendant. The officer serving the process shall state the facts, upon whom issued, etc., in his return, and service of process so made shall be as effectual as if a corporation of this state were sued and the process had been served as required by law; but, in order that defendant corporation may also have effectual notice, it shall be the duty of the clerk to immediately mail a copy of the process to the home office of the corporation by registered letter, the postage and fees for which shall be taxed as other costs. The clerk shall file with the papers in the cause a cetificate of

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