thought better to allow the officer a fixed mileage by the shortest traveled route, leaving him at liberty, under certain circumstances, and where his orders are not to proceed by a For particular route, to choose his own. instance, if he were ordered from Boston to New Orleans, and for his own purposes he elected to travel by way of Chicago, it might be difficult for him to determine what his expenses would have been if he had taken the direct route, whereas the computation of mileage by such route would be an easy matter. We think the Court of Claims was correct in its conclusion that the question whether travel is abroad or within the United States should be determined by the termini of the journey rather than by the route actually taken. Instances are frequent where an officer ordered from one place to another within the United States is obliged to perform the whole or a substantial part of his journey either upon the high seas or upon foreign soil. If, for example, he were ordered from Buffalo to Detroit, or from New York to Galveston by sea, it would be sticking in the bark to speak of either as "travel abroad," because in one case the most direct route lies through Canada, and in the other the voyage is made upon the high seas. While the voyage in question was not literally "in the United States," it was such within the intent and spirit of the enactment. 545] An officer is to be understood as *traveling abroad when he goes to a foreign port or place under orders to proceed to that place, or from one foreign port to another, or from a foreign port to a home port. But where he is ordered to proceed from one place in the United States to another, and the government for its own purpose requires him to proceed by sea rather than by land, he ought not thereby to be disentitled to his mileage by the nearest traveled route. It may be conceded in this case that, if the petitioner had been ordered to Panama, and upon arrival there had found orders awaiting him to proceed to New York, he would have been entitled only to his expenses; but where he is ordered from San Francisco to New York by way of Panama, he should be considered as making but a single journey, and that within the United States. Whether, if his actual expenses in such case had exceeded his mileage by the nearest route, he would have been entitled to such expenses, is not presented by the record in this case, and we express no opinion upon the point. ing to the courts of the state, and the national tribunals universally follow their rulings except in cases where it is claimed that some right protected by the Federal Constitution has been invaded. 2. Where the owner of lands intended in good faith to pay all the taxes on them, but made a mistake, relying on the old descriptions and map, not knowing that a new map had been followed in making the assessment, and thereby omitted to pay the taxes on part of his lands, a sale of such lands for the taxes and the tax deed are invalid. [No. 385]. Submitted Jan. 22, 1894. Decided Feb. 5, 1894. IN ERROR to the Circuit Court of the United States for the Southern District of Mississippi, to review a judgment in favor of the defendant, David D. Withers, in an action brought by J. S. Lewis, plaintiff, to recover possession of a tract of land, in Wilkinson county, Mississippi; the defendant having died, A. C. Monson, has been substituted as executor in his place. Affirmed. *Statement by Mr. Justice Brewer: [546 This was an action brought by the plaintiff in error, plaintiff below, against David D. Withers to recover possession of a tract of land containing 80 acres, and described as follows: Lots 5 and 6, of section 22, township 3, range west, Wilkinson county, Mississippi. A jury was waived and the case tried by the court. Findings of fact were made and a judgment entered thereon in favor of the defendant, which judgment is now before us on error. Since the record was filed in this court, the defendant Withers has died, and the suit been revived in the name of his executor. The facts are these: Plaintiff's title was based on a tax deed, and the single question in the case is as to the sufficiency of that deed, for the defendant was in possession by his tenants, and, as is not disputed, held prior thereto the fee simple title. The tax deed was for the delinquent taxes of the year 1887, which amounted to $4.84, while the land was of the value of $6000. At the time of the entry and patent of these lands in 1833 and 1835 they were included in lots 3 and 4, of section 22, and the whole section, as shown by the tract book of original entries, was subdivided into four lots: Lot 1 containing 88 acres; lot 2, 62 acres; lot 8, 80 acres, and lot 4, 120 acres. And such was the description in all the defendant's muniments of title. In 1884 an act passed the legislature authorizing the board of supervisors to purchase a new and complete set of maps of the several townships of the county. In pursuance of this law and soon after its passage new maps were purchased and deposited in the chancery clerk's office. On the map of this township, Section 22 was subdivided into six lots: Lot 1, containing 88 acres; lot 2, 62 acres; lot 3, 40 acres; lot 4, 80 acres; lot 5, 40 acres; and lot 6, 40 acres. The findings do not show the form of the assessment prior to 1875, but in that year, under a special act of the legislature, 1 The determination of any questions arising it was assessed to the defendant as section 22, under the tax laws is a matter primarily belong-containing 350 acres. In 1879 it was assessed There was no error in the judgment of the court below, and it is, therefore, affirmed. J. 8. LEWIS, Plf. in Err.. v. A. C. MONSON, Executor of DAVID WITH- (See 8. C. Reporter's ed. 545-550.) Tax laws-payment of taxes. NOTE.-As to power of states to tax, see note to Bcholey v.Rew, 23:99, and to Dobbins v. Erie County. 10:1022. As to sale of lands for taxes; strict compliance with statute necessary, see note to Williams v. Peyton, 4: 518. to him as lots 2, 3 and 4, section 22, etc., containing 262 acres. In 1883, in the same way, 547] *except that the number of acres was stated at 260. In 1887, for the first time, the section was assessed as follows: Lot 1, 88 acres, to S. A. Fetters, agent; lots 2, 3 and 4, 182 acres, to D. D. Withers; and lots 5 and 6, 80 acres, to Unknown." The pencil memorandum of defendant's lands sent by his agent to the assessor as a return of assessment was not in the form required by the assessment laws of Mississippi, but was accepted as sufficient by the assessor. That memorandum describes the land as lots 2, 3 and 4, and as containing, respectively, 62, 80 and 120 acres. Without the knowledge of defendant or his agents, the assessor, in making up the assessment roll, changed the description to conform to that in the new map. On the roll, as finally prepared, lots 2, 3 and 4 appear as valued at $9 per acre, and lots 5 and 6 at $1 per acre. The minutes of the board show no order changing the assessment of D. D. Withers, or the acreage of lots 2, 3 and 4, and none in regard to the said lands or lots 5 and 6 of said section, other than the general one receiving and approving the assessment roll of 1887, which describes lots 2, 3 and 4 as containing 182 acres, and lots 5 and 6, 80 acres. The defendant had no notice of the new subdivision of the section into six lots, or of the procuring of new maps by the board of supervisors, or of the change in the form of description from that previously used in all deeds, in assessments, and in the memorandum of return made by his agent. In reference to the payment of taxes the court found as follows: "The defendant's agent and attorney went to the county seat of Wilkinson county to pay defendant's taxes, because, upon a statement to defendant by the collector, the amount was much less than in former years and the acreage of his land largely reduced, and for the purpose of clearing up and adjusting the whole matter. He discovered lands of defendant not included in the list furnished to the assessor by Swan, the defendant's agent, and paid on them. He applied to the collector then engaged in attendance on the chancery court, who in formed him that he did not think he had paid on all of defendant's lands, and introduced him 548]to a Mr. Miller, his *deputy, there in his office, as one more familiar with the lands in the county than any one else, and requested defendant's agent to make himself at home and use Miller until he got everything straight. In comparing the tax receipts of previous years with the tax receipt then in his possession said agent noticed the discrepancy in the acreage of lots 2, 3 and 4, and called Miller's attention to it. Miller said he would see about it, stepped to the corner of the room and got the township maps, footed up the acreage of lots 2, 3 and 4, and found it 182 acres. Defendant's agent asked him how he accounted for the acreage, and he replied, Withers had been paying for years on land in the Mississippi river, but added, referring to the maps, these are the latest surveys and are, I suppose, correct. "Defendant's agent then looked at the map and saw lots 5 and 6 thereon and asked, Who do lots 5 and 6 belong to? Miller replied, I don't think they belong to Withers. Said agent replied, They are very close to Withers' land, and Miller answered, He did not think they were ever assessed to Withers, and did not know whether they belonged to him or not. Said agent was doubtful about it, went back; made a thorough examination of Withers' muniments of title to see if lots 5 and 6 belonged to him. It was the first time he had ever heard of said lots 5 and 6, and he had no knowledge of the discrepancy nor of the map beyond the fact that said Miller told him it was the latest survey of the particular tract. When he saw a survey of lots 5 and 6, and could find no such lots in defendant's muniments of title, he concluded the land did not belong to Withers, but that they were water lots that belonged to no one, and that there was no land there. Said agent was then and there ready and willing to pay the taxes on lo's 5 and 6, but he did not tender the money for the taxes and demand a tax receipt as prescribed by law, because he did not think the lands belonged to Withers. He first ascertained his mistake when this suit was brought." In addition it may be noticed that the list of lands furnished by the defendant's agent contained over thirty tracts, aggregating several thousand acres. Mr. W. L. Nugent for plaintiff in error. Messrs. Marcellus Green, Thomas J. Carson and S. S. Calhoon for defendant in error. *Mr. Justice Brewer delivered the [549 opinion of the court: No question is more clearly a matter of local law than one arising under the tax laws. Tax proceedings are carried on by the state for the purpose of collecting its revenue, and the various steps which shall be taken in such proceedings, the force and effect to be given to any act of the taxing officers, the results to follow the non-payment of taxes, and the form and efficacy of the tax deed, are all subjects which the state has power to prescribe, and peculiarly and vitally affecting its well being. The determination of any questions affecting them is a matter primarily belonging to the courts of the state, and the national tribunals universally follow their rulings except in cases where it is claimed that some right protected by the Federal Constitution has been invaded. Turning to the decisions of the supreme court of Mississippi, we find in Richter v. Beaumont, 67 Miss. 285, a case almost precisely like the one at bar. It is true that the question there presented arose upon the admissibility of testimony, but the views expressed by the court in its opinion, if accepted as controlling, as they must be, are decisive of this case. In that case there was an old and a new map; an old and a new description. The owner in possession paid according to the old, and in ignorance of the new, intending to pay on all the land that he owned. But by As to when an injunction to restrain the collection As to when taxes illegally assessed can be recovered of a tax will be granted, see note to Dows v. Chi- | back, see note to Erskine v. Van Arsdale, 21: 63. cago, 20: 65. its reduction, he cannot, after the entry of judgment based thereon, the receipt of payment, and an acknowledgment of satisfaction, repudiate the whole transaction, and obtain a judgment for the full amount of the verdict, on the ground that under the law the court had no power to disturb the verdict. A party may in open court consent to a reduction of the verdict in his favor, and the noting of his consent by the clerk in the journal entry of the judgment is sufficient evidence thereof, and cannot be questioned. [No. 208.] N ERROR to the Circuit Court of the United INR for the Northern District of Florida, the new map and description the number of lots in the section had been increased, and the tract described by the added number was sold for non-payment of taxes. The lot thus numbered and sold was a part of the land belonging to him, and upon which he was intending and attempting to pay all the taxes. The court, by Mr. Justice Campbell, thus disposes of the question: "By the ancient division of the town and designation of lots, lot six embraced the parcel of land sued for in this action, 550] which *parcel is, by the modern map, a part of lot seven. The defendant (appellant) Submitted Jan. 17, 1894. Decided Feb. 5, 1894 was in 1883, and prior and subsequent thereto, in the actual possession of lot six, and he gave the description of his land to the assessor as lot six, and it was so assessed, he intending and understanding that lot six extended eastward according to the ancient order, so as to include at, by the new map, is part of lot seven. He paid the taxes on lot six, and lot seven, not being paid on, was sold for taxes. does not appear that the appellant had ever done anything in recognition of the new map, or that he knew that the new map was conformed to by the assessor in assessing lots in Woodville. It may be inferred from the fact of his residence in the town, and the recognition by citizens and officials of the new map, that he was aware of it, and that the assessor was governed by it in assessing. If so, he should not be allowed to defeat the assessment and sale by his secret understanding or purpose. A mental reservation of the owner can It not be permitted to defeat assessment. On the other hand, if, until a recent date, lot six was understood to embrace what, by a new map, is part of lot seven, and the owner and occupant was governed by the former description in giving it in to the assessor, and did not know, and should not have known, that the assessor would deal with it as designated by the new map, he should not lose his land." Little need be added to this extract from the opinion in that case. The suggestion there made a mental reservation is out of this case by the finding of the court. That the owner was not bound, as matter of law, to take notice of the new map is shown by that decision, and if he was not bound to know, and did not in fact know, and paid under a mistake, relying upon the ancient descriptions and the old map, and intended in good faith to pay all his taxes, then clearly within the scope of that decision, the sale was invalid, and the deed fails. Upon the authority of that case the judgment of the court below is affirmed. 551]*EDWARD H. LEWIS, Plff. in Err., v. GEORGE C. WILSON ET AL. L Where a party having a verdict consents to to review a judgment in favor of Edward H. Lewis, plaintiff, against George C. Wilson et al., defendants, for damages for libel. Affirmed. Statement by Mr. Justice Brewer: The facts in this case are as follows: Plaintiff in error, the plaintiff below, brought suit against the defendants to recover damages for libel. At the December (1887) term and on April 3, 1888, jury returned a verdict in his favor, assessing the damages at $10,000. On April 16, 1888, the defendants filed a motion for a new trial on the ground that the damages were excessive. After the entry of this motion the following appears of record: "Edward H. Lewis December Term, 1887. "After the rendition of the verdict of the jury in this action and a motion by the defendants for a new trial on the ground that the damages assessed by the jury were excessive, the court said from the bench that the defendants' motion would be granted unless the plaintiff consents to reduce the verdict from ten to five thousand dollars, as the verdict is clearly excessive, if we eliminate all damages which arose out of the claim of the plaintiff for special damages to his business in Texas, and to which he could lay no claim under the pleading and evidence in this case, and which the court withdrew from the consideration of the jury. And the court further said if the [552 plaintiff consents to reduce the verdict to five thousand dollars in pursuance of this sugges tion, and the defendants decline to pay the judgment for that amount and desire to pros ecute a writ of error to the Supreme Court, then, in that event, judgment will be entered up for the sum of ten thousand dollars upon the verdict of the jury. "And afterwards, to wit, on the 23d day of April, A. D. 1888, comes the plaintiff, by his attorney, and enters his consent to the reduction of the verdict of the jury to the sum of five thousand dollars. "And then come the defendants, by their ing issues litigated and decided, and grounds of decision, see note to Miles v. Caldwell, 17: 755. As to what defects are cured by verdict; what not, see note to Wills v. Claflin, 23: 490. As to when a verdict may be directed by the court. As to parol evidence to explain judgment by show-see note to Grand Chute v. Winegar, 21: 174. attorney, and submit to pay the said five thous- | offers and hereby binds himself to credit upon and dollars. said judgment the sum of $5000, paid by defendants on plaintiff's claim, April 27, A. D. 1888. "It is, therefore, considered by the court that the plaintiff, Edward H. Lewis, do have and recover of and from the defendants Geo. C. Wilson, John N. C. Stockton; Mumby, Stockton & Knight, composed of Frank W. Mumby, John N. C. Stockton, and Raymond D. Knight; Wightman and Christopher, comdosed of William S. Wightman and John G. Christopher; A. W. Owens, Daniel G. Ambler, George F. Drew, J. M. Lee, C. B. Smith, George Hughes, J. M. Barrs, Samuel Barton, F. P. Fleming, J. R. Tysen, C.E. Garner; John N. C. Stockton, trustee: F. W. Hawthorne, C. P. Cooper, J. S. Smith, Jr., James P. Taliaferro, James M. Fairlie, A. W. Cockrell, Charles W. Da Costa, W. B. Young, J. R. Campbell, T. E. Stribling, Roswell H. Mason, B. M. Baer, A. W. Barrs, J. E. T. Bowden, James M. Kreamer, and Telfair Stockton, the sum of five thousand dollars and his costs, taxed at $644.25. "Comes now the plaintiff, Edward H. Lewis, by H. Bisbee, his attorney, on this 27th day of April, A. D. 1888, and acknowledges the receipt of five thousand six hundred and fortyfour and in full satisfaction of this judgH. Bisbee, Atty." ment. Thereafter this motion was filed: "Nov. 29, 1889. "H. Bisbee, Atty. for Plaintiff. "To Messrs. A. W. Cockrell & Son, of counsel for defendants." *This motion was overruled after ar- [554 gument of counsel, and exceptions taken. Thereupon the record was removed into this court by a writ of error, the writ being signed April 23, 1890, just two years after the date of the judgment. Mr. H. Bisbee for plaintiff in error. ror. Mr. Justice Brewer delivered the opinion of the court: This is a most extraordinary case. Nearly two years after a judgment has been formally entered, and after the plaintiff bas received payment and acknowledged full satisfaction, he comes in and moves the court to enter a new judgment in double the amount, and on the denial of such motion brings the matter here on error. His contention is that, under the practice in Florida, the court had no power 553] *"In the Circuit Court of the United to grant a new trial upon a motion made more States, Northern District of Florida. "Comes now the plaintiff, by H. Bisbee, his attorney, and moves the court for a judgment on the verdict of the jury in the case, rendered on the 9th day of April, A. D. 1888, nunc pro tunc as of the date when it should have been rendered, according to law and the practice of this court, on the following grounds: "1st. Because said verdict was and is a legal verdict, duly rendered, and has not been set aside or modified by the court, nor in pursu ance of any act or order of the court, or any judge thereof acting within its or his jurisdiction. "2d. That all proceedings in this suit had and entered on the files of the court, its minutes, dockets, and records, of the date of said verdict are null and void for want of jurisdiction of the court. "3d. Because the defendants could not make the motion for a new trial, which they did make on the 16th day of April, A. D. 1888, on the ground that the laws of the state of Florida prohibited defendants from making a motion for a new trial after the expiration of four days from the date of the verdict rendered on the 9th day of April, A. D. 1888, and any action had on such motion was not within the jurisdiction of the court. "4th. Because plaintiff cannot apply to the Supreme Court for a writ of mandamus to order the court to enter judgment upon a verdict until a motion for such judgment has been refused, nor can defendant take a writ of error until a judgment on the verdict is entered up. "If the court enter judgment nunc pro tunc on the verdict for $10,000, plaintiff hereby than four days after a verdict; that the recital of all that the court said from the bench, as to the amount of damages, and its purpose to grant a new trial unless the plaintiff consented to a reduction, must be disregarded as not properly matter for entry on the journal and not brought into the record by any bill of exceptions, and so a mere memorandum made by the clerk, without any significance in the case (Young v. Martin, 75 Ū. S. 8 Wall. 354 [19:418]); that no consent to a reduction of the verdict, signed by the plaintiff or his counsel, appears on the record, and that the statement by the clerk is insufficient evidence of the fact. Therefore, the court had no power to enter a judgment for $5000; and the receipt of full satisfaction thereof was only a receipt of balf of the amount legally due, and does not prevent the plaintiff from proceeding to recover the other half. It is unnecessary to express any opinion as to the right of a party to file a motion for a new trial more than four days after the verdict; nor to decide whether the court can or cannotin the absence of any motion, of its own vo lition-whenever it sees that a grievous wrong has been done by a *verdict, set it aside. [555 For there is nothing which prevents a party having a verdict from consenting to its reduction; and if he does so, though only for the sake of obtaining immediate satisfaction of his claim and to avoid further delay and further litigation, he may not, after the entry of judgment based thereon, the receipt of payment, and an acknowledgment of satisfaction, repu diate the whole transaction, and obtain a judg ment for the full amount of the verdict, on the ground that under the law the court had no power to disturb the verdict. A man ma? continue litigation and stand on his rights, or he may waive some of his rights for the sake of terminating litigation; and when advised that 5. laws, by the states, are not violated by the legiti mate exercise of legislative power in securing the public safety, health and morals. A power reserved to the legislature to alter, amend or repeal a charter, authorizes it to make any alteration or amendment of a charter granted subject to it, which will not defeat or substantially impair the object of the grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public right. This court cannot proceed upon general ideas of the requirements of natural justice apart from the provisions of the Constitution supposed to be involved. • new trial will be granted, unless he consents to a reduction of the verdict, he may, although knowing that the court has no power to grant such new trial, and that if it be done an appel-4. late court will correct the error, consent to a reduction and let judgment be entered for the amount of the verdict thus reduced. And if he does so, he is concluded by his action in that respect. Here not only was there a consent on his part to a reduction, but also what amounted to a waiver of errors by the defend. ants, and a promise to pay the amount of the judgment. There was full consideration for the agreement, and judgment was entered in accordance therewith. Thereafter be received payment and acknowledged full satisfaction. The litigation is at an end by his consent, and he cannot reopen it. There is no force in the contention of the plaintiff that no written consent to the reduction of the verdict, signed by himself or attorney, was filed in the case. None was necessary. A party may in open court consent to such reduction, and the noting of bis consent by the clerk in the journal entry of the judgment is sufficient evidence thereof, 8. There is no unjust discrimination and no denial and cannot be questioned. The judgment will be affirmed. 556]*NEW YORK & NEW ENGLAND RAILROAD COMPANY, Plff. in Err., v. TOWN OF BRISTOL ET AL. (See 8. C. Reporter's ed. 556 571.) Motion to dismiss-Connecticut law as to grade crossings—legislative power-amending charter-natural justice-14th Amendment-legislative control of a railroad—unjust dis crimination-police power of state. L. A motion to dismiss a writ of error may be united with a motion to affirm on the ground that. although the record may show that this court has Jurisdiction, it is manifest that the writ or appeal was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument. & The Connecticut act of June 19, 1889, relating to grade crossings, is within the exercise of the police power of the state. The inhibitions of the Constitution of the United States upon the impairment of the obligation of contracts, or the deprivation of property without due process or of the equal protection of the NOTE-As to what is "due process of law," see note to Pearson v. Yewdall, 24: 436. As to constitutionality of ex post facto laws, see note to Calder v. Bull, 1: 648, and to Sturges v. Crowninshield, 4: 529. As to vested rights defined; how affected by subsequent repeal of statute, see note to Fletcher v. Peck, 3: 162. As to jurisdiction in the United States Supreme Court, where Federal question arises, or where are drawn in question statutes, treaty or Constitution, see notes to Martin v. Hunter, 4:97, Matthews v. Zane, 2: 654, and Williams v. Norris, 6: 571. As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state constitution; to revise decrees of state courts as to construction of state laws, see note to Hart v. Lamphire, 7: 679, and to Commercial Bank of Cincinnati v. Buckingham, 12: 169, 6. 7. The 14th Amendment cannot be availed of, as a means of bringing to this court the abstract opinions of every unsuccessful litigant as to the justice of the state decision against him or of the merits of the legislation on which such a decision may be founded. Railroad corporations are subject to legislative control in all respects necessary to protect the public against danger, injustice and oppression, and the state has power to exercise this control through boards of commissioners. of the equal protection of the laws in regulations applicable to all railroad corporations alike; nor is there necessarily such denial nor an infringement of the obligation of contracts in the imposition upon them in particular instances of the entire expense of the performance of acts required in the public interest. 9. The adjudication of the highest court of a state that a law enacted in the exercise of the police power of the state, to protect the public from danger, is valid, will not be reversed by this court, on the ground of an infraction of the Constitution of the United States. [No. 917.] IN See same case below, 62 Conn. 527. Statement by Mr. Chief Justice Fuller: By section 1, of an act of the legislature of Connecticut, approved June 19, 1889, entitled "An Act Relating to Grade Crossing" (Conn. Pub. Laws, 1889, chap. 220, p. 134) it was provided: "The selectmen of any town, the mayor and common council of any city, the warden and burgesses of any borough within which a highway crosses or is crossed by a railroad, or the directors of any railroad company whose road crosses or is crossed by a highway may bring their petition in writing to the railroad commissioners therein alleging that public safety requires an alteration in such crossing, its ap 269 |