San Mateo v. Southern Pacific Railroad Company/Opinion of the Court

This motion was made on the eighteenth of November last by Mr. John W. Ross, who had been specially appointed by the board of supervisors of the county as counsel for that purpose. Upon suggestion that counsel of record desired to oppose the motion, an order was made that notice be given them to appear and show cause against it if they desired to be so. This they have done, and it now appears that the suit was begun in a state court April 22, 1882. An answer was filed by the railroad company May 25, 1882. On the thirtieth of June the suit was removed to the circuit court of the United States. An amended answer was filed August 16, 1882, and on the same day a demurrer was filed to the answer. On the sixth of September the counsel for the county executed to the railroad company a receipt, of which the following is a copy:

'County of San Mateo, Plaintiff, v. Southern Pacific Railroad     Company, Defendant.

'IN U.S.C.IRCUIT COURT, NINTH CIRCUIT. (No. 2807.)

'Received, San Francisco, September 6, 1882, of the Southern Pacific Railroad Company, the sum of seven thousand two     hundred and forty-seven 63-100 dollars, ($7,247.63,) and the      sum of $724.76 dollars, attorneys' fees, all to be credited      upon any judgment that may be obtained by the plaintiff in      the above-entitled action.

'In case judgment shall be rendered in said action in favor     of said defendant, then said sum of money, less our fees      agreed to be paid by said county, shall be paid into the      treasury of the said county of San Mateo as a donation by      said defendant in lieu of taxes for the fiscal year 1881-82,      declared invalid. But in the event that a law shall be     hereafter passed providing for a reassessment of property in      said complaint in said action in said county for said year,      then said sum of money is to be treated as a part payment for      taxes for said fiscal year.

[Signed]

'RHODES & BARSTOW,

'Attorneys for San Mateo Co. in said action.'

On the twentieth of September the following stipulation was filed in the cause:

'The County of San Mateo vs. The Southern Pacific Railroad     Company. (No. 2807.)

'It is stipulated in the above-entitled actions that each of     them be, and hereby is, submitted upon the plaintiff's      demurrer to the first affirmative defense (second defense) in      the defendant's answer. And it is further stipulated that     judgment final in the action may be rendered upon the      demurrer, it being agreed that for the purpose of this      proceeding the other defenses are withdrawn from the      consideration of the court.

'RHODES & BARSTOW,

'Attys. for Plaintiff.

'L. D. MCKISICK,

'Atty. for Defendant.'

On the twenty-fifth of September a judgment was rendered upon the demurrer in favor of the defendant, and the suit dismissed. The next day a writ of error was brought to this court, and docketed here October 13, 1882. The case was elaborately argued before us December 19, 1882, but before a decision was reached a stipulation was entered into between the parties, as follows:

'IN THE SUPREME COURT OF THE UNITED STATES. (No. 1063.)

'The County of San Mateo vs. Southern Pacific Railroad     Company.

'Whereas, certain actions brought by the people of the state     of California, or by certain counties of said state, against      said defendant, and other railroad companies operating      railroads in said state, for the recovery of taxes assessed      against said companies for state and county purposes, were,      during the month of August last, tried before and submitted      to the circuit court of the United States, Ninth circuit, for      the district of California, which actions have since been      decided against the plaintiffs;

'And whereas, the attorneys for the respective parties to     said actions against whom judgments have been rendered intend      to sue out a writ or writs of error in one or more of said      actions, and to prosecute the same with as much diligence as      possible, and to move the supreme court that the same be      advanced on the calendar for argument:

'It is hereby stipulated by and between the parties to the     first-mentioned action that the further consideration of the      said action by the supreme court may be deferred until the      argument of one or more of the last-mentioned cases.

'San Francisco, September 18, 1883.

[Signed]

'A. L. RHODES,

'Atty. for Plff. in Error.

[Signed]

'S. W. SANDERSON,

'Atty. for Defendant.'

And thereupon the following order was made:

'The County of San Mateo, Plaintiff in Error, vs. The     Southern Pacific Railroad Company.

'The parties having stipulated that the further consideration of this cause may be postponed until certain other cases     are disposed of, this cause is restored to its original      position on the docket, there to await the further action of      the court.'

It now appears that, according to the claim of the counsel of record, there is due on account of the taxes sued for, including penalty, attorneys' fees and interest at the rate of 2 per cent. per month, from the time of delinquency until now, the sum of $14,399.07. It also appears that on the eleventh of the present month the railroad company paid into the treasury of the county the sum of $7,613.30. The county has also had the use of the $7,247.63 paid on the sixth of September, 1882, from the time of such payment until now. The only condition attached to the payment made on the eleventh of this month is that, if when the account is finally settled between the county and Rhodes & Barstow upon the basis of the assessment roll, principal, interest, delinquency, and attorneys' fees, it shall appear that the payments, including that to Rhodes & Barstow, are more than the actual amount due, the excess shall be returned to the railroad company. The payments have been: