cupant may desire, or may the local authorities limit the number of wires that may be constructed and used within its limits? These and other questions that will occur to every one indicate the confusion that may arise if the act of congress, relating only to telegraph companies, be so construed as to subject to national control the use and occupancy of the streets of cities and towns by telephone companies, subject only to the reasonable exercise of the police powers of the state. But, even if it were conceded that no such confusion would probably arise, it is clear that the courts should not construe an act of congress relating in terms only to "telegraph" companies as intended to confer upon companies engaged in telephone business any special rights in the streets of cities and towns of the country, unless such intention has been clearly manifested. We do not think that any such intention has been so manifested. The conclusion that the act of 1866 confers upon telephone companies the valuable rights and privileges therein specified is not authorized by any explicit language used by congress, and can be justified by implication only. But we are unwilling to rest the construction of an important act of congress upon implication merely, particularly if that construction might tend to narrow the full control always exercised by the local authorities of the states over streets and alleys within their respective jurisdictions. If congress desires to extend the provisions of the act of 1866 to companies engaged in the business of electrically transmitting articulate speech,-that is, to companies popularly known as "telephone companies," and never otherwise designated in common speech, let it do so in plain words. It will be time enough when such legislation is enacted to consider any questions of constitutional law that may be suggested by it. Something was said in argument as to the power of congress to control the use of streets in the towns and cities of the country. Upon that question it is not necessary to express any opinion. We now adjudge only that the act of 1866, and the sections of the Revised Statutes in which the provisions of that act have been preserved, have no application to telephone companies whose business is that of electrically transmitting articulate speech between different points. What rights the appellee had or has under the laws of Virginia and the ordinances of the city of Richmond is a question which the circuit court did not decide, but expressly waiv ed. It is appropriate that that question should first be considered and determined by the court of original jurisdiction. The decree of the circuit court of appeals, so far as it reverses the decree of the circuit court, is affirmed, and the cause is reman 1ed, with directions for such further proceedings in the circuit court as may be in conformity with the principles of this opinion and consistent with law. It is so ordered. (174 U. 8. 545) TERRITORY OF NEW MEXICO v. UNITED STATES TRUST CO. OF NEW YORK et al. (May 15, 1899.) No. 169. ΤΑ ΧΑΤΙΟΝ EXEMPTION OF RIGHT OF WAY OF PACIFIC RAILROAD-VALIDITY OF ASSESSMENT. 1. Section 2 of the act of July 27, 1866, chartering the Atlantic & Pacific Railroad Company, provides: "That the right of way through the public lands be, and the same is hereby granted, to the said * • company ⚫ for the construction of a railroad and telegraph line as proposed. Said way is granted to said railroad to the extent of one hundred feet in width on each side of said railroad where it may pass through the public domain, and the right of way shall be exempt from taxation within the territories of the United States." Held, that the exemption from taxation was of the same right of way therein granted through public lands, and did not ex tend to right of way through private lands otherwise acquired by the company. 2. Under the laws of the territory of New Mexico for the assessment of property for taxation, by which the term "real estate" is defined as including the improvements thereon, an assessment of railroad property, which enumer ates the improvements on the right of way, and gives to some of them a separate valuation, is not thereby rendered invalid, nor can the improvements for that reason be said to have been assessed as personal property. Appeal from the Supreme Court of the Territory of New Mexico. Frank W. Clancy, for appellant. C. N. Sterry, E. D. Kenna, Robert Dunlap, and Victor Morawetz, for appellees. Mr. Justice McKENNA, delivered the opinion of the court. This case was submitted with No. 106, which was between the same parties, and on the authority of the opinion in that case the judgment of the supreme court of the territory was affirmed. 172 U. S. 171, 186, 19 Sup. Ct. 128. The cases were argued together, and it was supposed involved identically the same questions, dependent upon a statement of facts, which was stipulated. No distinction between the cases was indicated in the oral argument, and a reference of a few lines in a brief of 35 pages was overlooked. In the petition for rehearing our attention was called to the fact that there is a substan tial difference between the matters involved in this cause and those arising in No. 106. The difference is this: In 106 the right of way was in Bernalillo county, through land which was public domain, while in this case the right of way is in Valencia county, across the public domain for 33 miles only, and for 60.7 miles over land which was held in private ownership at the time of the grant to the railroad by the act of 1866. In other words, the railroad company derived its right of way for 33 miles in Valencia county under section 2 of the act of July 27, 1866, and to 60.7 miles under the power conferred by section 7 of said act. This difference was not adverted to in *547 No. 106, and we will now consider the effect of it. In the opinion in 106 we said: Per "The right of way is granted to the extent of two hundred feet on each side of the railroad, including necessary grounds for station buildings, workshops, etc. What, then, is meant by the phrase, 'the right of way'? 'A mere right of passage,' says appellant. contra, appellee contends that the fee was granted, or, if not granted, that such a tangible and corporeal property was granted that all that was attached to it became part of it, and partook of its exemption from taxation. "To support its contention, appellant urges the technical meaning of the phrase, 'right of way,' and claims that the primary presumption is that it was used in its technical sense. Undoubtedly, that is the presumption, but such presumption must yield to an opposing context, and the intention of the legislature otherwise indicated. Examining the statute, we find that whatever is granted is exactly measured as a physical thing, not as an abstract right. It is to be two hundred feet wide, and to be carefully broadened, so as to include grounds for the superstructures indispensable to the railroad." After further consideration of what was granted, we also said: "The interest granted by the statute to the Atlantic & Pacific Railroad Company therefore is real estate of corporeal quality, and the principles of such apply. One of these, and an elemental one, is that whatever is erected upon it becomes part of it." And we concluded that not only the right of way was exempt, but all its superstructures were exempt. But our conclusion was expressly based on the terms of the statute, and we took care to affirm the rule of construction which had been announced many times and in many ways, that the taxing power of the state is never presumed to be relinquished unless the intention be expressed in terms too clear to be mistaken. If a doubt arise as to the intention of the legislature, that doubt must be solved against exemption from taxation. Applying this rule to the act of July, 1866, the exemption from taxation must be confined to the right of way granted by the United States by section 2 of the act, and to the superstructures which become a part of it, and not to the right of way which the railroad company may have acquired under section 7, or independently of that section. Section 1 creates the corporation, and authorizes it to construct and maintain a continuous railroad and telegraph line from and to certain points, and invests the company with the powers, privileges, and immunities necessary to effect that purpose. Section 2 provides: "That the right of way through the public lands be, and the same is hereby granted, to the said Atlantic and Pacific Railroad Company * for the construction of a railroad and telegraph line as proposed. Said way is grant ed to said railroad to the extent of one hun19 S.C.-50 dred feet in width on each side of said railroad where it may pass through the public domain, * * * and the right of way shall be exempt from taxation within the territories of the United States." The right of way which is granted and the right of way which is exempt from taxation is precisely identified by the natural and first meaning of the words used and their relations. It would require an exercise of construction to extend the exemption, and, even if there are reasons for it, there are certainly reasons against it, and in such conflict the rule requires that the latter shall prevail. 2. It is contended by the appellee that the. assessment was invalid, because the laws of the territory required the assessment of the right of way and its superstructures to be made as an entirety. The contention is technical. It is not complained that the valuation of the superstruc tures was excessive, but that they were assessed as personal property, and hence invalidly assessed, because by the laws of the territory the term "real estate" includes lands to which title has been acquired and improvements, and the term "improvements" includes all buildings, structures, fixtures, and fences erected upon or fixed to land, whether title has been acquired or not. The record does not afford the means of judging of the contention as clearly as might be wished, but we think it is not tenable. The intervening petition, which is the basis of the proceedings, proceeds upon the ground that omissions were made in assessments of property to the railroad company for a series of years beginning with the year 1892 and ending with 1896, and that additions were made of said property under the laws of the territory for said years. The valuation of the property and the taxes levied against it are stated, and a description of the property is attached. It is alleged that the receiver of the company refuses payment because he claims that the property is exempt from taxation under the act of July, 1866; but it is also alleged "that the said exemption from taxation extends only to the right of way granted to said railroad company on each side of its railroad where it may pass through the public domain, and does not extend to any improvements made upon the right of way, nor to the said right of way itself where it passes through land not included in the public domain." It is prayed that "the said taxes, so levied as aforesaid," be declared a lien on the property in the hands of the receiver, and that he be ordered "to pay the said taxes." General relief is also prayed. To the petition of intervention the receiver submitted pleas respectively to the claim of taxes for each of the years. The pleas were substantially alike, and alleged the assessment of the company's property for each of the years, with a description or designation of * *550 it, the value at which it was assessed, and the taxes levied against it, and the amounts of taxes paid by the company. In the first plea it is alleged that the company, through its officers, made a return to the county assessor of its property situated in the county, and a copy of the return is attached, and made part of the plea. Discriminating the property upon which the taxes were paid and that in the return of the company and assessed, the plea alleges: "That the other property returned by the taxing officers of said railroad company for said year was and is the property upon which the taxes are paid as above stated, and as shown by Receiver's Exhibits 3 and 4. "That the only pretended or claimed levy of taxes against any property of the Atlantic & Pacific Railroad Company for the said year, remaining unpaid, is that shown to have been extended and levied upon the 'right of way' of the Atlantic & Pacific Railroad Company, which was and is assessed at the lump sum of $327,103 upon the assessment roll for said year, together with the further sums placed in said assessment roll in the column headed Value of Cattle,' opposite the words contained in the column in said assessment roll headed 'Name of Property Owners,' save and ex.cept as hereinafter stated. "The names and sums referred to are as follows: "All of which is shown by the said assessment and levy of taxes upon said assessment roll, as will fully appear by reference to said Receiver's Exhibits No. 1 and No. 2, and the indorsements thereon. "That prior to the 1st day of January, 1894, the Atlantic & Pacific Railroad Company paid each and every item of taxes assessed and levied against it or its property in said Valencia county, territory of New Mexico, save and except only that levied against the assessed value of its right of way,' and that levied against the figures set opposite the names of the stations as hereinabove set forth and described." The right of way, therefore, was assessed in 1892, and whatever taxes were due on it, or any part of it, were left delinquent. As to the other years, the record is not much less definite. It appears that the right of way was assessed, and the taxes levied against it were not paid. In all the pleas there is a careful allegation of payment of the taxes which were conceded to be valid, and as careful a one that the company refused "to pay the balance of the taxes because of the fact that the assessment as made by the assessor was an assessment of the right of way and station grounds of the Atlantic & Pacific Railroad, which were and are exempt under the act of congress creating said railroad company." It is manifest that the right of way was assessed, and the taxes were delinquent. In what manner were the additional assessments made? It is shown in the exhibit to the intervening petition. We select the assessment for 1892. The assessments for the other years are the same, the amounts only being different to a small extent: The following was omitted in the assessment of the year 1892, and was not put upon the assessor's book, and is now, in accordance with the provisions of sections 2847 and 2848, here listed, valued, and assessed by the collector: The cross-ties, rails, fish plates, bolts, spikes, bridges, culverts, telegraph line, and other structures erected upon the right of way of the Atlantic & Pacific Railroad Company in the county of Valencia, and constituting "improvements" upon the land embraced within said right of way where same runs over what was public domain of the United States when said right of way was granted to said company, 33 miles in length, valued at $6,500 per mile... Also the cross-ties, rails, fish plates, bolts, spikes, bridges, culverts, telegraph line, and other structures erected upon the right of way of the Atlantic & Pacific Railroad Company in said county of Valencia, and constituting "improvements" upon the land embraced within said right of way where it runs over land which was held in private ownership at the time of the grant of said right of way to said railroad company, 60.7 miles, valued at $6,500 per mile. Station houses, depots, switches, water tanks, and all other improvements at Rio Puerco station.... Station houses, depots, switches, water tanks, and all other improvements at San Jose station.. Station houses, depots, switches, water Station houses, depots, switches, water Station houses, depots, switches, water Station houses, depots, switches, water tanks, and all other improvements at Grant's station .... Station houses, depots, switches, water tanks, and all other improvements at Blue Water station.... $214,500 $394,550 $ 1,800 540 600 2,100 600 1,300 3,100 1,300 $11,340 The assessments were not, as contended by appellee, of personal property. They were clearly of real estate, and, because the improvements were designated by name, and some of them given a separate valuation, did not invalidate their assessment as real estate. It was mere description, which did not change the essential or legal character of the superstructures. *551 It follows from these views that The judgment of the supreme court of the territory must be reversed, and the cause remanded for further proceedings in accordance with this opinion; and it is so ordered. (174 U. S. 610) McDONALD v. CHEMICAL NAT. BANK. (May 22, 1899. No. 242. NATIONAL BANKS TRANSFERS OR PAYMENTS IN CONTEMPLATION OF INSOLVENCY REMITTANCES IN USUAL COURSE OF BUSINESS ACT OF INSOLVENCY- DEALINGS WITH CORRESPONDENTSREMITTANCES IN TRANSMISSION AT TIME OF SUSPENSION. 1. So long as a national bank is a going concern, carrying on its business as usual, and has committed no act of insolvency, and it does not appear that a present suspension of business is contemplated by its officers, though it is actually insolvent, to their knowledge, payments or remittances made or caused to be made to a correspondent bank in the due course of its daily business cannot be said to have been made in contemplation of insolvency, or with a view to perfer the correspondent as a creditor, within the meaning of Rev. St. § 5242, making such payments void. 2. The mere fact that a correspondent of a national bank refuses to pay a check drawn on it by such bank at a time when the account of the latter is overdrawn does not constitute an act of insolvency on the part of the drawing bank, which would render subsequent transfers of property or payments made by it void, as preferences, under Rev. St. § 5242. 3. Where a national bank has, during a series of years, kept an account with another bank, against which it has drawn in the daily course of its business, and has also constantly made remittances to its correspondent, through the mails, in the form of checks of third parties, for collection and credit to its said account, there is an implied general agreement and understanding that such remittances are in the nature of payments on account, and their deposit in the mail is a delivery to the correspondent, whose property therein is not destroyed or impaired by the suspending of the sending bank or the appointment of a receiver therefor be fore their actual receipt; nor is it affected by the fact that in case the paper remitted should be destroyed in transmission, or prove uncollectible, the loss would fall upon the remitting bank. Mr. Justice White, Mr. Justice Peckham, and Mr. Justice McKenna dissenting. Appeal from the United States Circuit Court of Appeals for the Second Circuit. In January, 1896, Kent K. Hayden, as the duly-appointed receiver of the Capital National Bank of Lincoln, Neb., filed in the circuit court of the United States for the Southern district of New York a bill of complaint against the Chemical National Bank of New York. *The bill alleged that the Capital National Bank on the 21st day of January, 1893, was insolvent and stopped doing business, and that on the 22d day of January, 1893, the comptroller of the currency closed said bank and took possession of its assets and affairs; that for a period long prior to the 15th day of January, 1893, the said bank was insolvent, and its insolvency was known to all its offi cers; that ever since the 2d day of June, 1884, there had been mutual and extensive dealings between the two banks above named, in which each had acted for the other, as correspondent banks do, for the making of collections and the crediting of the proceeds thereof; that the Capital National Bank kept an active deposit account with the defendant; and that settlements on the basis of such accounts were made at periodic times during all said period, and any balance after the correction of errors, mutually agreed to be charged or credited, was at such periods credited or debited, as the fact might be, upon the books. of each of said banks to a new account, and the prior accounts thereby and in that manner adjusted and settled. That the defendant bank had refused to pay or honor the drafts drawn upon it by the Capital National Bank presented on or since January 21, 1893; that since January 22, 1893, the defendant bank had received many and large sums of money belonging to, and for the account of, the Capital National Bank, some of it being the sums of $2,935.60, $815.79, and $735, from the officers of the Capital National Bank, and the rest from the third parties which remitted the same to the defendant for account of the Capital National Bank, and that, in particular, it had received on January 23, 1893, $5,000 from the Packers' National Bank, and $2,000 from the Schuster Hax National Bank, and divers other sums from others, on that day and since; that the defendant had refused to account for and pay over to the complainant the said collections. Wherefore it was prayed that an accounting be had, and that the defendant be ordered to pay over what might be thereby found due. The defendant bank answered, admitting the preliminary allegations of the bill, but denying its knowledge of the insolvency of the Capital National Bank on or prior to January 21, 1893, but averring that up to the 23d day of January, 1893, it was informed and did believe that the said Capital National Bank was entirely solvent, and dealt with it and gave it credit as a solvent bank. The answer denied that on and after January 21, 1893, it had ceased to pay and refused to pay all drafts drawn upon the defendant by the Capital National Bank, but admitted that on the 23d day of January, 1893, because of information then for the first time received of the struggling condition of said bank, the defendant bank did refuse to pay the drafts. of the Capital National Bank, which was then indebted to the defendant in the sum of at least $13,992.93 on balance of account, besides. large amounts of negotiable paper, indorsed by the Capital National Bank, then held by, and previously purchased or discounted by, the defendant bank, and the proceeds of which had been credited to the account of the Capital National Bank, all of which transactions were averred to have been made in the usual course of business between the banks, and without any knowledge, notice, or 611 belief on the part of the defendant bank that the Capital National Bank was insolvent, or in any danger of becoming so. The answer denied that the defendant had since January 22, 1893, received many and large sums of money belonging to and for account of the Capital National Bank, but admitted that since January 21, 1893, it had received certain remittances and payments, in the form of checks or drafts, for account of the Capital National Bank, all which it had placed to the credit of the Capital National Bank, which had left the Capital National Bank indebted to the defendant bank in a large sum, in the form of balance of account and negotiable paper indorsed to the defendant by the Capital National Bank; and the answer alleged, on information and belief, that said remittances and payments were made by the Capital National Bank, or by other banks and bankers by the direction and order of said Capital National Bank, through the United States mails, and were so ordered, made, and remitted before the appointment of any receiver for said Capital National Bank, and before it ceased to pay its obligations or had suspended its usual and ordinary banking business, and that said remittances by said Capital National Bank, or by other banks and bankers, by it ordered to be made to the defendant, were made in the ordinary and accustomed course of business between the defendant and the National Capital Bank, and, when received by the defendant, were by it placed to the credit of the Capital National Bank. The answer admitted that it had received the sums of $2.935.60, $815.79, $735, $5,000, and $2,000 on the 23d day of January, 1893; that the said sums of $2,935.60 and $815.79 were remitted to the defendant on or about the 19th day of January, 1893, and the said sum of $735 on or about the 20th day of January, 1893, by the said Capital National Bank, which on said respective days deposited and delivered the same in the United States mail, in letters addressed to the defendant, in the usual and accustomed course of business, and before said Capital National Bank had suspended payment or stopped business, and before it was taken charge of by the receiver; that the said sum of $5,000 was remitted to the defendant on or about the 19th day of January, 1893, by the Packers' National Bank, and the said sum of $2,000 was remitted to this defendant by the Schuster National Bank on or about January 19, 1893, by being by said banks, respectively, deposited in the United States mail, in letters addressed to the defendant, in the usual course of business, and before the Capital National Bank suspended payment or stopped business, and before it was taken charge of by the receiver. And the answer alleged, on information and belief, that said remittances to it by the Packers' National Bank and the Schuster National Bank, respectively, were made in virtue of orders and directions previously given to them by said Capital National Bank, on or about January 18, 1893, in the usual course of business between them and the Capital National Bank. A replication was filed and evidence put in on behalf of the respective parties. It was stipulated that the Capital National Bank continued to transact the usual and ordinary business of a national bank up to the close of banking hours on January 21, 1893; that the ordinary mail time between Lincoln, Neb., and the city of New York is 50 hours; between Lincoln and South Omaha, Neb., where the Packers' National Bank is situated, is 2 hours and 40 minutes; between South Omaha and New York City, 48 hours and 37 minutes; between Lincoln and St. Joseph, Mo., where the Schuster Hax National Bank is located, is 7 hours and 28 minutes; and between St. Joseph and New York City is 50 hours and 55 minutes. The complainant put in evidence an account or statement, furnished by the defendant to the complainant, showing the transactions between the Capital National Bank and the Chemical National Bank from January 3, 1893, to January 27, 1893, showing a balance on the last day of $13,317.94, against the Capital National Bank and in favor of the Chemical National Bank. The complainant likewise put in evidence a draft drawn on January 13, 1893, by the Capital National Bank on the Chemical National Bank for $5,000, to the order of T. M. Barlow, cashier, and a protest of said draft for nonpayment on January 17, 1893; also, a statement of various drafts drawn by the Capital National Bank on the Chemical National Bank, at different times, in favor of third parties, and protested for nonpayment on and after January 24, 1893. These protested drafts amounted to $44,264.66. The defendant called as a witness its cashier, William I. Quinlan, who testified that when the draft for $5,000 to the order of T. M. Barlow, cashier, was presented and payment refused, the Capital National Bank had no deposits or funds on deposit with the Chemical National Bank out of which such draft could be paid, and that the account of the Capital National Bank had been overdrawn for some time. The defendant put in evidence a letter dated January 19, 1893, from the Packers' National Bank, inclosing its draft for $5,000 on the Fourth National Bank of New York, to be placed to the credit of the Capital National Bank, and letter, dated January 18, 1893, from the Schuster Hax National Bank, inclosing its draft for $2,000 on the Chemical National Bank, to the credit of the account of the Capital National Bank. Further evidence was put in by the respective parties, which it does not seem necessary to state. On March 16, 1897, after argument, upon the pleadings and proofs, the circuit court dismissed the bill of complaint, with costs. An appeal was taken from this decree to the circuit court of appeals for the Second circuit, £19. |