Whatever concern they have in the question belongs to them only as citizens and members of the community." "Where there is a question of official discretion, it must be decided by the officers in whom the Constitution and laws have vested the discretion. If it be one of jurisdiction, a party who in common with his fellow citizen is menaced by it, must, in respect to his legal remedy, wait until his individual rights are involved. If the grievance consists of an alleged illegal exercise of official functions, those who question them, if they would have a preventive remedy, must invoke the action of the officer whom the law has appointed to sue in such cases. No private person, or number of persons, can assume to be the champion of the community, and in its behalf challenge the public officers to meet them in the courts of justice to defend their official acts." He discusses and expressly overrules the New York city cases holding a contrary doctrine. Doolittle v. Supervisors of Broome Co., 18 N. Y. 155. Again in 1861, the Court of Appeals had to decide a similar question, which came up from the city of New York. Judge Denio also wrote the opinion in this case, and after reiterating his views as expressed in the Doolittle case, said: "The fact of owning taxable property is not such a peculiarity as to take the case out of the rule, for all property with very limited exceptions is taxable, and everybody either has or is capable of acquiring property." "If a plaintiff has taxable property at the time he commences his action, he may not have it when the next assessment for purposes of taxation is made, and if he have none when the act complained of is committed, he may be a large tax payer when the act produces its result in increased taxatiou. The actual liability of the plaintiff to injury consists in his belonging to a community in which every person is subject to pay taxes of all he possesses, an act of administration, likely to produce taxation, is not therefore a matter of private or individual concern. It is an affair altogether public, and the only remedial process against an abuse of administrative power tending to taxation, which we can have is furnished by the elective franchise (suggested by De Tocqueville) or a proceeding on behalf of the State, or in an act without jurisdiction, in treating the attempt to enforce the illegal tax as an act of trespass." " The counties, cities, villages and towns. into which the State is divided are governed, as to matters of local policy by the different agencies which have been created by the general or special laws of the State. The officers of municipal corporations are public officers, equally with the officers of towns and counties, and the property which is subject to their control and management is public property, in the same sense with the property held for public use in the towns and counties." In this case the corporation represents the interest liable to be affected by the remedy sought; but the plaintiff does not represent the whole public, who are the parties claimed to be aggrieved. I am very confident that the plaintiff cannot sustain this action in his character as a resident citizen and tax payer." Roosevelt v. Draper, 23 N. Y. 318. These decisions settled the question adversely to the claim of tax payers that they had a right to invoke the equitable powers of the court to restrain the performance of contemplated unlawful acts of public officers; and the only remedy left was that suggested by some of the courts, namely, the prosecution of delinquent officers by the attorney-general, on behalf of the State. But in People v. Ingersoll, 58 N. Y. 1, and People v. Fields, id. 491, the Court of Appeals declared that there was no authority in the State by its attor ney-general to interfere by action, to protect the property rights and interests of municipal corporations. This reduced the tax payer to a condition of utter helplessness, and he was left entirely at the mercy of officials who might prove unworthy of and criminally unfaithful to their trust. The result of these decisions was to leave the tax payer without remedy, except to wait and resist the collection of a tax which might be unlawfully levied. In the majority of cases this remedy would be useless and inapplicable. Ordinarily the proceedings of delinquent officers are regular upon their face, so that the collection of the tax could not be restrained. As a general thing, the evil consisted in "an abuse or misuser of the credit of the corporation, creating a lien upon its property, if it had any, but especially pledging its future resources, and the power of taxation vested in the municipal government, so that the property and funds of the corporation were wasted, and the tax payer burdened and his property incumbered. Tax payers certainly needed a remedy of some kind; but the courts said they could grant no relief, however gross or wanton might be the fraud or robbery committed by public officer. What was the poor tax payer to do? Here was a gordian knot, which the courts seemed unable to untie; but with the sword of Alexander, to-wit, an act of the Legislature, the knot was cut, the difficulty solved, tax payers were given an adequate remedy, and the official accountability of public functionaries was clearly established. The pioneer statute on this subject was chapter 161, of the Laws of 1872, entitled "An act for the protection of taxpayers against the frauds, embezzlements and wrongful acts of public officers and agents," which declared that "all officers, agents, commissions, and other persons acting for and on behalf of any county, town or municipal corporation in this State, and each and every of them may be prosecuted, and an action or actions may be maintained against them to prevent waste or injury to any property, funds, or estate of such county, town, or municipal corporation, by any person residing in such county, town, or municipal corporation, assessed for and liable to pay taxes therein, or who has paid taxes therein within one year previous to the commencement of any such action or actions." This benign statute first received a judicial construction at the hands of the Court of Appeals, in the case of Ayres v. Lawrence, 59 N. Y. 192, which was an action brought by certain tax payers of the town of Milo, in Yates county, "in their own behalf, and in behalf of all other tax payers of said town who are similarly interested in the cause of action, and who shall come in and contribute to the expenses of the suit." The action was brought to restrain the issuing of the bonds of the town in aid of the construction of a certain railroad, upon grounds which need not be stated here. Judge Allen, writing the opinion of the court, says that it was evidently the intention of the Legislature, "by the language of the act itself, to provide ample remedy and protection to the tax payer against all wrongful acts of public servants and agents, affecting the property rights of the corporation, or its pecuniary obligations to the prejudice of the tax payers." He further says that the term waste," as used in the act, includes every wrongful act of mismanagement of the property rights or interests of the municipality causing the loss or damage. The word "injury," includes every wrong, every thing that is not done rightfully, and the act inciudes "every pecuniary interest and right which could be wasted, that is destroyed, mismanaged, misappropriated or misapplied, or that could be injured by the unauthorized or wrongful act of public servants or agents to the damage or loss of the corporation or the tax payers." The words "property, funds or estate" embrace not only property and funds in possession, but the credit and power of taxation and of borrowing money in antici pation of taxation, and every process and means by which the municipal corporation can be charged pecuniarily or the taxable property within its limits burdened. "The taxing power may be so exercised as to result in a waste or injury of the 'property funds or estate' of the municipal corporation,and the issuing of bonds of the municipality is but an exercise of the taxing power," and when this power is exercised in violation of right, it is a waste and injury of the property, funds and estate, within the meaning of the act. The right of the plaintiffs, as tax payers, to maintain the action, was fully sustained. It should be observed that Judges Grover, Folger and Johnson, dissented; Judges Church, Rapallo and Andrews, concurring with Judge Allen in sustaining the position of the plaintiffs, and vindicating the beneficent character of the act. So in Newton v. Keech, 9 Hun, 355, the Supreme Court held that where a board of supervisors have directed a tax to be levied and collected, for the purpose of paying interest upon town bonds issued in aid of a railroad company, which bonds the Court of Appeals have declared to be invalid and void, a tax payer of the town may maintain an action under the Tax Payer's Act, to restrain the collector of the town from paying over to the railroad commissiouer the moneys in his hands arising from the collection of such illegal tax. Latham v. Richards, 15 Hun, 129, was an action brought by two tax payers of Saratoga Springs, to restrain the trustees of the village from carrying out a contract for the purchase of certain land, to be paid for largely by paying off mortgages thereon, and from levying a tax to raise money therefor. After the commencement of the action, and before the granting of a preliminary injunction, a portion of the tax was collected and paid over to the owners of the mortgages. Plaintiff applied for leave to file a supplemental complaint, setting forth these facts, and asking not only to restrain a further levy, but to compel those of the defendants who had received money to pay it back to the village; and the General Term in the third department held that an amendment setting forth this additional claim to relief, should be granted. This was going beyond the letter of the law, but it will be observed that afterward the act was amended so as to cover cases of this kind, and provide for compelling restitution by persons who had unlawfully been paid money belonging to a county, town or municipal corporation. action to restrain the defendant, Farnham, the supervisor of the town, from taking proceedings to have a tax levied on the town to pay the interest on certain bonds, and to restrain the defendant, the savings bank, from disposing of the bonds held by it, pending the action, and to obtain a judgment declaring the bonds and their coupons illegal and void, and directing their surrender and cancellation. The bonds which were received by the bank in good faith, and for a valuable consideration, were issued by the railroad commissioners of the town to take up other bonds which had been previously issued to aid in the construction of a railroad. It was claimed that the bonds first issued were void for failure to comply with certain statutory requirements. It was held that the plaintiff could maintain the action, and that an injunction was properly granted. Metzger v. Attica, etc., R. Co., 79 N. Y. 171, was a similar action, in which it was held that where town railroad bonds were illegally issued, an equitable action is maintainable, at the suit of a tax payer of a town to restrain the negotiation or payment of the bonds, and to compel their cancellation. Another aspect of this question was presented in Osterhout v. Hyland, 27 Hun, 167, where it was held that the jurisdiction of the board of town auditors only extended to the audit and settlement of unaudited and open town charges, and that it had no authority to reopen and decide a case which had been already decided upon its merits by its predecessor; and that as its reaudit of such a claim was void for want of jurisdiction, a tax payer of the town was entitled to maintain an action, under the Tax Payers' Act, against the owner of the claim, the supervisor of the town, and the board of supervisors, to restrain the payment of the claim. Section 1925 of the Code of Civil Procedure relates to actions by tax payers against public officers, but it is probably superseded by chapter 531, of the Laws of 1881. This is the only act now in force, and is entitled simply "An act for the protection of tax payers." It enlarges the scope of former acts, defines with more precision the cases to which the law applies, points out the various remedies and forms of relief, and seeks to guarantee to tax payers all the assistance they need, in restraining public officers in the performance of their duties, and in preventing frauds upon the public treasury, by the divers methods which the ingenuity of dishonest officials has been able to invent. The doctrine of Osterhoudt v. Hyland, 27 Hun, 167, above cited, was reiterated and affirmed by the Court of Appeals in Osterhoudt v. Rigney, 98 N.Y. 222, where Judge Andrews reviews the leading authorities. It was held in Osterhoudt v. Supervisors of Ulster, 98 N. Y. 239, that all persons interested in the alleged illegal claim, and whose rights would be affected by the judgment, are necessary parties to the action. In addition to the remedies of tax payers by action, the Legislature of 1879 (ch. 307), provided a summary remedy as against the officers of towns and incorporated villages, by which twenty-five freeholders may present to a justice of the Supreme Court an affidavit that they have reason to believe that the moneys of such town or village are unlawfully or corruptly expended. Such justice, upon proper notice, must make a summary investigation into the financial affairs of such town or village, aud the accounts of officers dis By chapter 526, of the laws of 1879, the act of 1872 was amended by requiring that the plaintiffs must have been assessed for $10,000 in the county, town or municipal corporation for one year previous to the commencement of the action, and they were also required to give a bond in $5,000 to save the county, etc., barmless from all costs, charges and expenses, by reason of such action. The act of 1872 was again amended by chapter 435, of the Laws of 1880, which reduced the necessary assessment of the proposed plaintiffs from $10,000 to $1,000. The necessity of residence by the plaintiff in the county, etc., was also dispensed with. They were only required to be tax payers. The amount of the bond was left to the discretion of the county, but could not be less than $250. The act also provided for action relating to the crediting, etc., of illegal claims against the county, etc., and in these cases the judgment might prohibit the payment or allow-bursing public funds, and such justice may also apance of such claims, or enforce restitution if the same had been paid or collected; and if an officer had suffered judgment against him by default, upon an illegal public claim, such judgment might be set aside and a proper defense interposed, under the direction of the court. In Hills v. Peakskill Savings Bank, 26 Hun, 161, the plaintiff, a tax payer of the town of Attica, brought an point experts to make the investigation. Upon the said justice becoming satisfied that any of the moneys of such town or incorporated village are being unlawfully and corruptly expended, and being appropriated to purposes to which they are not properly applicable, or are improvidently squandered or wasted, he shall forthwith grant an order restraining and prohibiting such unlawful or corrupt expenditure, appropriation, squandering or waste of such moneys, under penalty for disobedience of fine or imprisonment, or both, in the discretion of the court." Proceedings under this act are cumbrous and very summary, and I have found no reported cases where this remedy has been in. voked. All cases to which this act is applicable can be reached under the Tax payers' Act of 1881, and a large number of cases cognizable by the latter statute could not be brought within the former. Hence an action under the act for the protection of tax payers is the remedy universally adopted, so far as I have observed. In closing this article, I venture a summary of the existing provisions of law relating to remedies by action in favor of tax payers against public officers (act of 1881). 1. All officers, agents, commissioners and other persons acting for and on behalf of any county, town, village or municipal corporation may be prosecuted, and an action or actions maintained against them. (a) To prevent any illegal official act on the part of any such officer, etc. (b) To prevent waste or injury to any property, funds or estate of such town, etc. 2. Such an action may be brought by any person whose assessment, or jointly by any number of persons the sum of whose assessments, shall amount to $1,000, and (a) Who shall be liable to pay taxes upon such assessment in the county, etc., to prevent the waste or injury of whose property the action is brought, or (b) Who have been assessed or paid taxes therein upon an assessment of $1,000, within one year previous to the commencement of the action. 3. The plaintiff must, upon commencing the action, furnish a bond to the defendaut, in a penalty to be fixed by a justice of the Supreme Court, or the county judge of the county in which the action is brought, but not less than $250, the justification to be in at least the sum of $5,000 dollars. The bond must be approved, and conditioned to pay all costs awarded to the defendant if the action is finally determined in his favor. 4. An injunction may be granted in the action, in which case the bond may provide for the payment of the damages arising therefrom, to the party entitled to the money, the auditing, allowing, or paying of which was enjoined, if the court shall finally determine that the plaintiff is not entitled to such injunction. 5. The waste or injury may consist (a) In any board, officer, etc., by collusion or otherwise, contracting, auditing, allowing or paying, or conniving at the contracting audit, allowauce, or payment of any fraudulent, illegal, unjust or inequitable claim, demands or expenses, or any item or part thereof, against or by such county, etc., or (b) Permitting judgment to be recovered against such county, etc., or against himself in his official capacity, either by default or without the interposition and proper presentation of any existing defenses. 6. In either of these cases, the court may prohibit the payment or collection of any such claims, demands, expenses or judgments, in whole or in part, or may enforce restitution thereof, if paid or collected; and may declare the colluding official personally responsible therefor, and compel him to repay the same out of his own property, so as to indemnify and save harmless the county, etc., from the whole or a part thereof. 7. In case of a judgment unlawfully recovered, as above mentioned, the court may vacate and open the judgment, with leave and direction for the defendant therein to interpose and enforce any existing, legal, or equitable defense, under the direction of such person as the court may appoint for that purpose. 8. All books of minutes, entry, or account and the books, bills, vouchers, checks, contracts, or other papers connected with or used or filed in the office of, or with any officer, board, or commissioner acting for or on behalf of any county, town, village, or municipal corporation in the State are declared to be public records, and shall be open, subject to reasonable regulations to be prescribed by the officer having the custody thereof, to the inspection of any tax payer. I have now given a general view of this subject as it has been developed in this State. De Tocqueville thought that if an officer performed his duties "without energy or zeal " the people had no remedy, but to vote him out of office, and try another; and the result of the decision of the courts of this State, prior to 1872, was to the same effect. Our courts even thought that the people had no civil remedy for the confessedly unlawful acts of public officers. But our laws now go almost to the length of giving tax payers a remedy against an officer for a lack of zeal or energy; at least a mere neglect of duty may be the foundation of an action. Tue development of the idea of affording relief to tax payers by action was rapid from the time of the first statute in 1872 to that of the last in 1881; and the liberal construction which the courts have given the statutes, has placed their remedy upon a secure foundation; so that now tax-paying suitors need not, as formerly, be turned out of court, for a supposed lack of power in the court to afford relief. LITTLE VALLEY, N. Y. CHARLES Z. LINCOLN. TAXATION - MUNICIPAL PROPERTY - PART OF BUILDING RENTED. MAINE SUPREME JUDICIAL COURT. DECEMBER 1, 1885. INHABITANTS OF CAMDEN V. CAMDEN VILLAGE CORPORATION. A building erected by a village corporation, in pursuance of the authority conferred upon it by its charter, containing rooms for the public meetings of the corporation, police court, assessor's office, lock-up., etc., is exempt from taxation by the town in which it is located. The fact that parts of the building, while not in actual use, were let for hire, does not take away its character as a public building, or render it liable to taxation. CTION to recover tax. facts. A A. P. Gould, for plaintiffs. The opinion states the T. R. Simonton, for defendant. FOSTER, J. The defendant corporation, by special authority from the Legislature, together with other powers and privileges particularly enumerated in the act of incorporation, was authorized to build a village hall at a cost of not more than $8,000. Thereafter a lot was purchased and a building erected thereon by the defendants, known as "Megunticook Hall." This building is sixty feet long, fifty feet wide, and two stories high. The upper portion is finished into a hall with galleries, platforms, and two small ante rooms. The lower story contains a hall somewhat smaller than the one above, a lock-up, assessors' room, cook and furnace room. The upper hall is used for the annual and other meetings of the corporation, the lower one for a police court room; and when not in use by the corporation, both halls are let, as occasion requires, for lectures and other public entertainments, with an income from $300 to $500 a year, which is appropriated in defraying the annual expenses of the corporation. The plaintiff town in which the defendant corporation is situated, claiming that the property is subject to taxation under the general statutes, like other real estate, has assessed a tax thereon, and this action is brought to recover the same. The plaintiff's claim is that this corporation is limited in its extent of territory, is partly private and partly public, in which the inhabitants of much the largest portion of the town have no pecuniary interest, and that this building being adapted to and used in part for other than corporate purposes, is owned by the defendants in their social or commercial capacity, and for pecuniary profit; and is therefore neither expressly nor impliedly exempt from taxation. As against this proposition the defense set up is, that the corporation is of a public nature, and that the property upon which this tax is sought to be imposed is held by the defendants for public uses, necessarily incident to the objects of the corporation, and as such exempt from taxation. For a correct determination of this question, it becomes necessary to consider the nature and character of such corporations, the objects they are intended to accomplish, and their connection with the government of the State. It is laid down by the authorities that such corporations are public; and while they "are allowed to assume to themselves some of the duties of the State in a partial or detailed form, but having neither property nor power for personal aggrandizement, they can be considered in no other light than as auxiliaries of the government." United States v. R. Co., 17 Wall. 328. Being intended as agencies in the administration of civil government they are regarded as public and partaking the nature of municipal corporations in their incidents. Being purely creatures of legislative enactments they owe their creation to the particular statute which gives them their existence; this statute, together with the general provisions of law applicable to them, confers upon them the powers they possess, and like other municipal corporations, imposes upon them certain public duties which they owe to the State in the administration of the local government. Likewise towns are public corporations, created for similar public purposes in the due administration of the government of the State. As incident to their existence and the objects of their creation they are allowed to purchase or build town-houses, school-houses, poor-houses and police stations, these being the "recognized functions of government," and as such exempted by implication from the general provisions of the statute in relation to taxation as property appropriated to public uses. Worcester v. Western R., 4 Metc. 567; Wayland v. County Commissioners, 4 Gray, 501; Worcester County v. Worcester, 116 Mass. 193; Portland v. Water Co., 67 Me. 137; Boston & Maine R. v. Cambridge, 8 Cush. 239. This doctrine is thus laid down by a learned writer and jurist, Dillon Mun. Corp. (2nd ed.), § 614: "The general statutes of the State upon the subject of taxing property undoubtedly refer to private property and not to that owned by the State; and in view of the public nature of municipalities and the purposes for which they are established, heretofore explained, the author is of opinion that such enactments do not by implication extend to any property owned by them, certainly to none owned by them for public uses." In accordance with these views the Court of Appeals in Kentucky, in the case of Louisville v. Commonwealth, 1 Duvall, 295, held that whatever property was used and held by the city for carrying on its municipal government, or was necessary or useful for that purpose, was not taxable by the State, and this would include public buildings, prisons and property dedicated to charity. The courts of other States furnish ample authority in support of exempting, by implication from taxation, property of the character above named. People v. Doe, 36 Cal. 222. was a case where a writ of assistance was asked by the plaintiff to put him in possession of land which he claimed to have acquired by tax title, being a portion of the city cemetery in the city of Sacramento. The court denied the writ as to that on the ground that the land was public property, and therefore not taxable. Sanderson, J., said: "The Constitution and laws upon the subject of taxing property are therefore to be understood as referring to private property and persons and not including public property and the State, or any subordinate part of the State government, such as counties, towns and municipal corporations." Speaking of the South Park commissioners as a corporation and of the park property, Breese, C. J., in People v. Salomon, 51 Ill. 52, Says: "But holding it, they hold it as a public corporation for public purposes, and was it ever heard that the property, real or personal, of a public municipal corporation was subject to taxation?" And Pennsylvania maintains the same doctrine. "No exemption law is needed for any public property held as such." Directors of Poor v. School Directors, 42 Penn. St. 25. To entitle it to exemption however it must be public in its nature. There is a distinction between property held and owned for profit by a municipal corporation like a private individual, charged with no public trust or use, which is private in its nature, and that which it holds in general or special trust for purposes germane to the objects of the corporation. In the former case it is the legitimate subject of taxation, and no reason exists why it should be exempt from the general rule; while in the latter case, such property forming a part of the means and instrumentalities of the corporation called into use in the administration of government, is held to be exempt from taxation upon principle as well as upon authority. Taxation is a sovereign right, essential to the existence of government, and as a rule attaching upon all property within the jurisdiction of the State. But in our system of government, both State and National, there are limitations as well as exceptions to the rule. The Federal government cannot tax the public means and instrumentalities of the State, nor the State the public means and instrumentalities of the National government, so as to interfere or impair their efficiency in performing the functions by which they are designed to serve that government. Nat. Bank v. Commonwealth, 9 Wall. 362; Thomson v. Pacific R., id 591; Burrough Tax. 505. There is no express constitutional prohibition upon the State against taxing the means and instrumentalities of the general government, but it is held to be prohibited by necessary implication. Collector v. Day, 11 Wall. 123. Court-houses, jails, town-houses, school-houses, poor-houses and other buildings appropriated to public uses, owned by municipal corporations, and incident to such corporations, are but the means and instrumentalities used for municipal and governmental purposes, and are therefore exempt from general taxation, not by express statutory prohibition, but as we have seen by necessary implication. Hence it has been held upon principles quite analogous, that public property is by implication exempted from lien statutes as much as from general tax laws, and for the same reasons. Fos ter v. Fowler, 60 Penn. St. 27; Frank v. Freeholders, 39 N. J. L. 347; Board of Education v. Neidenberger, 78 FOR RAILROAD PURPOSES-STATE Ill. 58; Bouton v. McDonough Co., 84 id. 384; Loring v. REMOVAL OF CAUSE CONDEMNING In Frank v. Freeholders, supra, the court say, that "when the buildings are those of a municipal corporation, a fundamental rule of public policy compels the courts to arrest the proceedings before the buildings are touched." It is said that "the power to tax involves the power to destroy, and the power to destroy might defeat and render useless the power to create." 1 Kent Com. 426. Consequently if the implied exemption exists as between the State and the public buildings or property of the town or city created by its own Legislature, a fortiori the town cannot tax the public means and instrumentalities of a village corporation, an auxiliary of the State, deriving its existence from the same legislative source. The charter of the defendant corporation, when examined, will be found to contain many of those incidents of a public character usually pertaining to other municipal corporations; among which this corporation is authorized and vested with power to raise money to defray the expenses of a night watch, a police force, a fire department, and all other necessary measures for the better security of life and property, and for the promotion of good order and quiet within its limits. Thus the powers with which it is invested, and the objects for which it was created, are similar, in many respects, to those which belong to towns, cities, and other municipal corporations. In addition to the powers and privileges above enumerated, bestowed upon this corporation, express authority is given by the sovereign power of the State to erect this hall. And from a careful examination of the facts in the case, and in view of the public nature of this corporation and the purposes for which it was created, we are led to no other conclusion than that this building, authorized by legislative sanction, is owned by the corporation for public uses, rather than in its "80cial or commercial capacity." The letting of those parts of the building which are not in actual use by the corporation are incidental and subsidiary to the objects for which it was created, and do not take away its character as a public building, or render it liable to taxation by the town as it would be were this a private corporation and its building erected for private purposes. Many city and town halls in this State are so constructed that when not in use for strictly municipal purposes, they may be let for any proper use. Such fitting up and letting for hire are the incidents and not the primary objects of such public buildings. The authorities to which our attention has been called by the learned counsel for the plaintiffs, upon examination, will be found to apply to property owned not by public municipal corporations and appropriated to public uses, but by private corporations or associations, and where express statutory exemption was claimed. In such cases of express exemption statutes are to be construed with strictness, and the exemption should be denied unless so clearly granted, as to be free from doubt. Dill. Mun. Corp., § 616. In accordance with the stipulation in the report of the case, the entry must be, plaintiff's nonsuit. Peters, C. J., Walton, Danforth, Libbey and Emery, concurred. JJ., Justice Dykman says the New York City Bar Association are "a lot of dudes "-so the Tribune says. This is a mistake-they are not endued with wisdom. STATUTE. LAND UNITED STATES CIRCUIT COURT, W. D. MICHIGAN, MINERAL RANGE R. Co. v. DETROIT & LAKE SUPE- A State statute provided that proceedings for the condemna- ON motion to remand. On the 14th of September, 1885, the Mineral Range Railroad Company filed its petition in the Probate Court for the County of Houghton for the condemnation of certain lands owned by the defendant in the village of Hancock for the purpose of constructing a branch of its road across these lauds from Houghton to Hancock. The defendant shortly thereafter answered the petition, and upon the same day filed its petition in the Probate Court for the removal of the cause to this court, upon the ground that it was a citizen of the State of Connecticut. The removal was ordered, and a transcript of the record immediately filed in this court. The railroad company thereupon moved for the appointment of three commissioners under the statute, accompanying its motion with an oral motion to remand for want of jurisdiction. W. P. Healy, for the railroad company, petitioner. T. L. Chadbourne, C. B. Grant and Otto Kirchner, for the copper company. BROWN, J. In delivering the opinion of the Supreme Court in Gaines v. Fuentes, 92 U. S. 10, 19, Mr. Justice Field remarked that the removal act of 1867 covered every possible case involving a controversy between citizens of the State where the suit was brought and citizens of other States, if the matter in dispute, exclusive of costs, exceeded the sum of $500; that it mattered not whether the suit was brought in a State court of limited or general jurisdiction. "The only test was, did it involve a controversy between citizens of the State and citizens of other States, and did the matter in dispute exceed a specified amount? And a controversy was involved in the sense of the statute whenever any property or claim of the parties capable of pecuniary estimation was the subject of the litigation, and was presented by the pleadings for ju dicial determination." That controversies of the general nature of this are "suits of a civil nature at law" was settled in Boom Co. v. Patterson, 98 U. S. 403, which was also a proceeding uuder a statute of Minnesota for the condemnation of land under the right of eminent domain. There is however a difference in the methods of procedure under the two statutes which takes the case under consideration out of the language of the opinion in the Minnesota case, and involves it in a difficulty which was not there presented. In Minnesota the course was for the corporation to apply to the District Court of the county for the appointment of com *S. C., 25 Fed. Rep. 515. |