*

relating to habeas corpus, he commenced a suit; and he has since prosecuted it in all the ways known to the law. The court do not say that a return must be made, and the parties appear and begin to try the case before it is a suit. When the petition is filed and the writ prayed for, it is a suit-the suit of the party making the application. Ex parte Milligan, 4 Wall. 2.

IN RE STUTSMAN COUNTY.

Reported in 88 Federal; 337.、
(1898.)

AMIDON, District Judge: Chapter 67 of the Laws of 1897 of the state of North Dakota, makes provision for the collection of delinquent taxes by a proceeding in the district court. The enactment is taken from a statute that has long been in force in the state of Minnesota. Section 1 provides that the county treasurer shall make a list of all taxes upon real estate in his county which have been delinquent for certain years. The list is required to contain a description of the parcels of land upon which the taxes have not been paid, and opposite such description the name of the owner to whom assessed, if known, and the amount of the tax, with penalty and interest. Such list is to be verified by the affidavit of the treasurer, and is then filed in the office of the clerk of the district court of the county. "The filing of such list shall have the force and effect of the filing of a complaint in an action by the county against each piece or parcel of land in such list described, to enforce against it the taxes therein appearing against it, and the penalties and interest for the several years for which such taxes shall remain unpaid, and to obtain a judgment or decree of the court for the sale of such piece or parcel of land to satisfy the amount of such taxes remaining unpaid, with penalties, interest and costs, and also the effect of notice of the pendency of such action, to all persons interested in such lands."

"Jurisdiction of this court is resisted upon the grounds: First, that the proceeding for the collection of delinquent taxes provided by the statute of North Dakota is not a 'suit' within the meaning of the Act of 1887 and 1888; second,

that such proceeding, if it is a suit, is not a suit of which the federal courts are given original jurisdiction;"

It "involves the determination of questions of law and fact, and there are parties litigant to contest the case on the one side and on the other." Upshur Co. v. Rich, 135 U. S. 467, 477, 10 Sup. Ct. 654. "A claim of the parties, capable of pecuniary estimation, is the subject of the litigation, and is presented by the pleadings for judicial determination. Gaines v. Fuentes, 92 U. S. 10-20; Pacific Railroad Removal Cases, 115 U. S. 10, 5 Sup. Ct. 1113. It has been expressly held by the supreme courts of Minnesota and North Dakota that the proceeding under this statute is a suit, and the same conclusive force is given to a judgment entered therein as to judgments and decrees in actions at law and suits in equity. Chauncey v. Wass, 35 Minn. 1, 25 N. W. 457, and 30 N. W. 826; Wells Co. v. McHenry (N. D.), 74 N. W. 241. It is dif ficult to appreciate the force of that reasoning which attaches to a proceeding in court, as to its effect upon the rights of the parties, all the consequences of a suit, but, for the purpose of determining the jurisdiction of the federal courts, holds the same proceeding to be purely administrative.

In support of the ground for the motion to remand, now under consideration, counsel rely mainly upon the case entitled In re City of Chicago, 64 Fed. 897. Whether that case was correctly decided must depend upon the effect to which the judgment of the county court, upon the report of the commissioners in the proceeding there under review is entitled. The supreme court of Illinois has repeatedly passed upon that question, and has uniformly held that such judgments possess the same force as judgments in ordinary civil actions, and are open to collateral attack only upon the ground that the court failed to acquire jurisdiction. They conclusively establish all matters affecting the validity of the assessment which precede their rendition, and forever bar a defendant from again litigating any matter which he might have presented by answer. Lehmer v. People, 80 Ill. 601; Clark v. People, 146 Ill. 348, 35 N. E. 60. It is true, as stated in the opinion in 64 Fed. 899, that the power of taxation is, as to its source, legislative, and, as to its exercise, administrative;

but the power of finally determining the validity of a tax is judicial. Before the property of a citizen can be taken, or conclusively charged with liability for a tax, he has the right to a judicial determination of two questions: First, whether the law authorizing the tax is a constitutional exercise of the legislative power; and, second, whether the administrative officers, in imposing the tax, have pursued the authority vested in them by the statute. The determination of these questions by a judgment which can only be assailed by writ of error or appeal is judicial. It can make no difference whether such determination is made in the course of a proceeding by the county or municipality to levy or enforce the tax, or in a proceeding by the owner of the property to defeat it. A judgment which conclusively determines a right of obligation, so that the same matter can not be further litigated, except by writ of error or appeal, is an exercise of judicial power; and a proceeding in a court of common law or equity, which culminates in such a judgment, is a "suit" within the meaning of the federal judiciary acts. Any other determination exalts matters of form above those of substance. Inasmuch, therefore, as the proceeding under the Illinois statute terminates in a judgment having this conclusive force, it would seem that it ought to be regarded as a suit for the purpose of determining the jurisdiction of federal courts.

c. Controversy and case. In Osborn v. Bank, 9 Wh. 738, at p. 819, C. J. Marshall says: This clause (Constitution, Article III, Section 2, Clause 1) enables the judicial department to receive jurisdiction to the full extent of the constitution, laws and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it, by a party who asserts his rights in the form prescribed by law. It then becomes a case. and the constitution declares that the judicial power shall extend to all cases arising under the constitution, laws and treaties of the United States.

Story on the Constitution, at Section 1646, says: Another inquiry may be, what constitutes a case within the meaning of this clause? It is clear that the judicial depart

ment is authorized to exercise jurisdiction to the full extent of the constitution, laws and treaties of the United States, whenever any question respecting them shall assume such a form that the judicial power is capable of acting upon it. When it has assumed such a form, it then becomes a case; and then, and not till then, the judicial power attaches to it. A case, then, in the sense of this clause of the constitution, arises when some subject touching the constitution, laws or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law. In other words, a case is a suit in law or equity, instituted according to the regular course of judicial proceedings; and when it involves any question arising under the constitution, laws or treaties of the United States, it is within the judicial power confided to the Union.

In re Pacific Ry. Com'n, 32 Fed. 241, J. Field says at p. 255: The judicial article of the constitution mentions cases and controversies. The term "controversies," if distinguishable at all from "cases," is so in that it is less comprehensive than the latter and includes only suits of a civil nature. Chisholm v. Georgia, 2 Dall. 431, 432, 1 Tuck. Bl. Comm. App. 420, 421. By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress or punishment of wrongs. Whenever the claim of a party under the constitution, laws or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.

In King v. McLean Asylum of Massachusetts General Hospital, 64 Fed. 331, at p. 335, J. Putman says: But the appellees rely on a supposed distinction between the use of the word "cases" and the word "controversies" in the section of the constitution defining the federal judicial power. That section uses the word "cases" in the first three clauses, namely, "cases in law and equity" arising under the constitution and the laws and treaties of the United States,

"cases affecting ambassadors, other public ministers and consuls," and "cases of admiralty and maritime jurisdiction." So far it has relation mainly, although not entirely, to the subject-matter of the litigation, and not the parties involved.

It then changes to the word "controversies," and uses this with reference to "controversies between two or more states," and then, without repeating the word, continues, "between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." The eleventh amendment to the constitution, which limits the judicial power of the United States with reference to the states, provides that it shall not extend "to any suit" of the class described in it. As to the change in phraseology found in this amendment, the supreme court very soon-that is, in 1821-in Cohens v. Virginia, 6 Wheat. 264, after great deliberation, determined in effect that the word "suit" is not so broad as the word "controversy," because the court maintained its jurisdiction on a writ of error, although the defendant was the state of Virginia; pointing out carefully that a proceeding in error is not a suit, although it can not be denied that it is a controversy. Mr. Justice Iredell, in Chisholm v. Georgia, 2 Dall. 419, 431, 432, distinguished between the word "controversies" and the word "cases" in this connection, by confining the former to such as are of a civil nature; and Mr. Justice Story, in the first edition of his Commentaries on the Constitution, both in the text at Section 1634 and in the note to Section 1668, recognized the possibility of this distinction, but did not positively approve or disapprove it. It has been suggested that the word "all" used in connection with the word "cases," and omitted in connection with the word "controversies," has peculiar force. This does not seem well sustained, but if it were, it would not touch the question we are considering. The change under consideration, from the word "cases" to the word "controversies" will be found to have been a mere matter of style, and to have no relation to any limitation or extension of the class of questions to be adjudicated. As we have already said, so long as this section