The opinion of the court was delivered by: After stating the facts in the foregoing language, Mr. Justice Harlan delivered the opinion of the court.
E. C. Marshall, for plaintiff in error.
Wm. M. Evarts, Geo. F. Edmunds, and S. W. Sanderson, for defendant in error.
This action was brought in the superior court of San Bernardino, California, for the recovery of certain taxes, county and state, alleged to be due from the Southern Pacific Railroad Company for the fiscal year of 1880-81. The amount claimed for county taxes is $8,785.90; that claimed for state taxes is $4,608.99. For each sum judgment is asked, with 5 per cent. penalty, interest on the taxes and penalty at the rate of 2 per cent. per month from December 26, 1880, and costs of advertising.
The complaint alleges that the taxes were duly assessed and levied upon 'forty-eight 88-100 miles of the roadway, road-bed, and rails of said defendant, assessed at ten thousand eight hundred dollars per mile;' upon its rolling stock, 'assessed at nineteen hundred and thirty-three 15-100 dollars per mile;' and upon its franchise, assessed at two thousand dollars per mile. It also alleges that the whole of the defendant's property, so far as its franchise, roadway, rails, road-bed, and rolling stock in California are concerned, was assessed, for the period named, at $10,483,518, the length of the defendant's road in the state being 711.56 miles. An answer was filed similar to those in the cases of County of Santa Clara, etc., v. Railroad Companies, ante, 1132, (just decided.) This case was removed to the circuit court of the United States upon the same grounds as those presented in the other cases.
The facts specially found by that court are, in all material respects, like those found in the former cases. The copy of the assessment roll for San Bernardino county, introduced at the trial below, is not, so far as it bears upon this case, materially different from that for Fresno and Santa Clara counties, set forth in the report of the other cases.
For the reasons given in the opinions delivered in the circuit court in the former cases, reported as Santa Clara Rail- road Tax Cases was given for the defendant.
But the bill of exceptions further states 'that, after said judgment was ordered, the defendant, being minded to pay, notwithstanding the fact that the tax had been declared invalid, the full amount of said tax due, without penalty, interest, or counsel fees, and to leave the question of its liability for said penalty, interest, and counsel fees to be finally determined by the supreme court of the United States in cases already pending there, or in this case if appealed, or taken there upon a writ of error, agreed, for the purposes aforesaid, that the judgment in its favor might be set aside and judgment in favor of the plaintiff be entered for the full amount of said tax, less penalties, interest, and counsel fees; which was done. And be it further remembered, that, before said judgment for the defendant was set aside, and in open court, it was stipulated and agreed by and between the attorneys for the plaintiff and defendant that if said judgment was set aside, and judgment for the plaintiff entered as aforesaid, the said defendant should not be deemed to have admitted thereby the validity of the taxes claimed, or any part thereof, nor should said judgment be treated, upon an appeal or proceedings under writ of error, as a consent judgment; defendant then and there expressly waiving that point, if point it was. And be it further remembered, that the object and purpose of the proceeding then had was to enable the defendant to pay into the state and county treasuries on account the sum for which the judgment was rendered, without prejudice to the right of the plaintiff in the case to proceed for penalties, interest, and attorney's fees claimed, and in order that the litigation might be brought to a speedy conclusion. The plaintiff tenders this its bill of exceptions, which, being agreed to by the respective attorneys for the parties, is allowed, signed, sealed, and made a part of the record of the court.'
The record also shows that in 40 suits, heard with this one, brought in the name of different counties, and of the state, against the Southern Pacific Railroad Company, the Central Pacific Railroad Company, and the Northern Railway Company, to recover like taxes, alleged to be due to counties and to the state, judgments were ordered for the respective defendants; that thereafter a stipulation, signed by the attorney of the several defendants in those cases and by the attorney general of the state, was filed, in which it is recited that the defendants, 'notwithstanding the fact that the taxes therein sued for have been declared invalid, being minded to pay portions of the sums claimed,' agree that judgments in favor of the plaintiffs might be entered for certain sums, being, as we suppose, the amount of the taxes sued for in the respective actions, less the penalties, interest, and counsel fees therein claimed.
On the eighth of December, 1885, the following stipulation was filed in the court below, and a printed copy thereof filed in this case here:
'IN THE CIRCUIT COURT OF THE UNITED STATES, NINTH CIRCUIT, DISTRICT OF CALIFORNIA.
'The County of San Bernardino, Plaintiff, vs. The Southern Pacific Railroad Company, Defendant. (No. 2,757.)
'It is hereby stipulated between the parties to the above-entitled action that for the fiscal year 1880-81 the principal of the tax claimed to be due by plaintiff from defendant, for state and county purposes, amounted to $13,394.88; that before judgment was entered herein in this court, from which judgment a writ of error has been taken, there had been paid on account of such taxes to the plaintiff herein, through its county officers, the sum of $4,932.40, leaving a balance due of $8,462.48, for which said sum judgment was taken.
'That for the fiscal year 1881-82 the principal of the tax claimed to be due by plaintiff, the county of San Bernardino, from defendant, for state and county purposes, was $16,347.87; that before judgment was entered in the action brought to recover such taxes, the defendant therein, the Southern Pacific Railroad Company, paid to the plaintiff, through its county officers, on account of such taxes, the sum of $6,518.25, and judgment was taken in said action for the balance, $9,829.67.
'That for the fiscal year 1882 the total amount claimed by said county from defendant, the Southern Pacific Railroad Company, for state and county purposes, was $9,631.45; that no payment had been made on account of said ...