An agreed statement of facts may be the equivalent of a special
verdict, or a finding of facts upon which a reviewing court may
declare the applicable law if said agreed statement is of the
ultimate facts, but if it be merely a recital of testimony or
evidential fact, it brings nothing before an appellate court for
consideration.
The certified statement of facts is insufficient, and presents
nothing for examination.
There was no invalidity in the facts of additional
assessments.
Page 183 U. S. 536
The filing of the intervening petition and the final
adjudication thereon were in time.
That the receiver had been discharged before final proceedings
were had, is immaterial.
The Santa Fe Company cannot claim that it was misled in any way
as to its liability for these taxes.
No order was necessary for retaking possession.
The property was sufficiently described in the decree, and it
must be assumed that the testimony warranted the description.
Until there was an identification of the property subject to
taxation and a determination of the amount of taxes due, it would
be inequitable to charge penalties for nonpayment.
There was no error in refusing interest prior to the decree.
On July 16, 1895, the United States Trust Company of New York
filed its bill in the office of the clerk of the District Court of
the Second Judicial District of the Territory of New Mexico,
praying foreclosure of a mortgage given by the Atlantic &
Pacific Railroad Company. On January 10, 1896, Charles W. Smith was
appointed receiver. On April 10, 1896, a decree of foreclosure was
entered. The decree provided that the purchaser or purchasers, and
his or their successors or assigns, should, as part consideration
and purchase price of the property purchased, and in addition to
the sum bid, pay
"any indebtedness and obligations or liabilities which shall
have been legally contracted or incurred by the receiver before
delivery or possession of the property sold, including the
receiver's notes or certificates hereinbefore mentioned, and also
any indebtedness and liabilities contracted or incurred by said
defendant railroad company in the operation of its railroad prior
to the appointment of receivers, which are prior in lien to said
first mortgage, and which shall not be paid or satisfied out of the
income of the property in the hands of the receiver, upon the court
adjudging the same to be prior in lien to said mortgage, and
directing payment thereof, provided that suit be brought for the
enforcement of such indebtedness, obligation, or liability within
the period allowed by any statute of limitations applicable
thereto."
"
* * * *"
"Any such claim for indebtedness, obligations, or liabilities
which shall not have been presented in writing to the receiver
Page 183 U. S. 537
or filed with the clerk of this Court prior to the time of
delivery of possession of such property shall be presented for
allowance, and filed within six months after the first publication
by the receiver of a notice to the holders of such claims to
present the same for allowance. The receiver shall publish such
notice at least once a week for the period of six weeks, in one or
more newspapers published in Albuquerque, New Mexico, Prescott,
Arizona, and Los Angeles, California, upon the request of any
purchaser or purchasers after delivery of the possession of the
property to them, and any such claims which shall not be so
presented or filed within the period of six months after the first
publication of such notice shall not be enforceable against said
receiver nor against the property sold, nor against the purchaser
or purchasers, his or their successors or assigns."
On May 3, 1897, a sale was made under the decree to A. F.
Walker, R. Somers Hayes, and Victor Morawetz. On May 4, the sale
was confirmed. The order of confirmation contained substantially
the same provisions respecting payment of obligations as the
decree, and added, "including also any taxes which may finally be
adjudged to be a lien upon the property sold under the decree
aforesaid."
According to an affidavit filed in the case, this clause was
entered at the suggestion of counsel for the territory, and upon
notice in open court of his intention to present a claim for the
taxes hereinafter referred to. On June 22, 1897, the purchasers
conveyed the property to the Santa Fe Pacific Railroad Company, and
on July 1, 1897, the receiver delivered possession of the property.
On October 4, 1898, he was by order of the court discharged as
receiver. He failed to give the notice required by the decree for
the purpose of cutting off claims against the property, and on
application of the Santa Fe Pacific Railroad Company, the grantee
of the purchasers, on December 19, 1898, an order was entered
directing the clerk of the court to publish the notice, and a
notice was published that, on or before October 23, 1899, all
claims against the receiver must be presented or they would be
barred. On June 10, 1897, after the confirmation of the sale but
while the property was in
Page 183 U. S. 538
possession of the receiver, the Territory of New Mexico, by
leave, filed an intervening petition claiming a lien for and
payment by the receiver of certain taxes upon part of the railroad
property in the County of Valencia. To this petition the trust
company and receiver, on June 23, 1897, filed joint and several
pleas. On the same day, without passing upon the sufficiency of the
pleas, the court ordered the intervening petition dismissed on the
ground that the "matters and things therein set up" were "not
sufficient to entitle the said intervening petitioner to the relief
sought by its petition." On appeal to the supreme court of the
territory, this order of dismissal was affirmed. From such decision
the territory appealed to this Court, which upon the first hearing
affirmed the rulings below (
172 U. S. 172 U.S.
171,
172 U. S. 186),
but on a petition for rehearing reversed the order and remanded the
case for further proceedings.
174 U. S. 174 U.S.
545.
The mandate having been returned and presented to the trial
court on August 4, 1899, proceedings were there had which
culminated, on October 5, 1899, in a finding that the territory was
entitled to a tax lien upon a portion of the railroad property for
$74,168.70, and a decree establishing such lien. From this decree
both parties appealed to the supreme court of the territory, which,
on August 23, 1900, modified the decree by reducing the amount to
$61,922.73 and awarding interest at the rate of six percent per
annum from October 5, 1899, the date of the decree in the district
court. 62 P. 987. From this decision, both parties have appealed to
this Court.
A statement of facts agreed to by the parties was filed in the
district court, and upon this statement the decree was founded.
This agreed statement contains a narrative of facts, transcripts of
records and the testimony which certain witnesses would have given
if they had been produced and sworn. This statement of facts was
incorporated in the record transmitted to the supreme court of the
territory, and is the only portion of the record showing the facts
presented on the hearing in the district court. After the decision
by the supreme court of the territory, both parties having
signified an intention to appeal to this Court, the territory
applied for a statement of facts in
Page 183 U. S. 539
accordance with the Act of Congress of date April 7, 1874, in
reference to practice in territorial courts and appeals therefrom,
18 Stat. 27, c. 80, which application was resisted by the counsel
for the trust company and the receiver on the ground that the case
had been tried in the court below upon an agreed statement of
facts, whereupon the supreme court made this entry of record:
"Being willing and desirous that the respective parties be
allowed to get their appeals before the Supreme Court of the United
States in such shape as their counsel deem proper, the court hereby
certifies for use upon the appeal of the said The United States
Trust Company of New York and C. W. Smith, receiver, that this case
was tried in the court below upon an agreed statement of facts,
which agreed statement of facts was made part of the record in the
district court and part of the record upon appeal to this Court,
and is to be a part of the record on appeal to the Supreme Court of
the United States; that the said agreed statement sets out the
facts of this case which were heard or considered by this Court
upon said appeal, and the same is hereby adopted by this Court as
its statement of such facts for use upon the appeal aforesaid,
without here repeating the same."
"And the court further certifies for use upon the appeal of the
said Territory of New Mexico, in accordance with the prayer of the
said appellant, the following statement of facts."
Following this was a special statement of facts, certified to
under the hand of the Chief Justice.
MR. JUSTICE BREWER delivered the opinion of the Court.
The district court dismissed the intervening petition on the
ground that it presented no claim against the property or the
parties. The reversal by this Court of such order is an
adjudication
Page 183 U. S. 540
that, upon the face of the petition, a valid claim was
presented, and is conclusive of such
prima facie validity
not merely against objections which were in fact made, but also
against those which might have been made.
Cromwell v. Sac
County, 94 U. S. 351,
94 U. S. 352;
Nesbit v. Independent District, 144 U.
S. 610,
144 U. S. 618.
We start in this inquiry then with the adjudicated fact that, upon
the face of the intervening petition was presented a valid claim
for the taxes therein specified.
The case was heard in the district court upon an agreed
statement of facts, which was thereafter certified by the supreme
court of the territory as a statement of facts under the Act of
April 7, 1874. We have had several occasions to consider the effect
of an agreement of the parties as to the facts.
See Wilson v.
Merchants' Loan & Trust Co., ante, 183 U. S. 121, and
cases cited in the opinion. An agreed statement of facts may be the
equivalent of a special verdict or a finding of facts upon which a
reviewing court may declare the applicable law, if such agreed
statement is of the ultimate facts, but if it be merely a recital
of testimony or evidential facts, it brings nothing before an
appellate court for consideration. The same rule obtains in cases
of appeals from territorial courts under the act of 1874. That act
in terms provides that --
"On appeal, instead of the evidence at large, a statement of the
facts of the case in the nature of a special verdict, and also the
rulings of the court on the admission or rejection of evidence when
excepted to, shall be made and certified by the court below."
Stringfellow v. Cain, 99 U. S. 610;
Idaho & Oregon Land Company v. Bradbury, 132 U.
S. 509.
Tested by the various authorities just cited, the certified
statement of facts is insufficient, and presents nothing for our
examination. This disposes of most of the questions discussed by
counsel.
When the mandate from this Court was filed in the district
court, a motion to dismiss and also pleas in abatement and in bar
were successively filed, argued, and overruled. We shall not
attempt to notice in detail the various matters presented in the
motion and pleas. It will be sufficient to state our conclusions.
upon the important questions.
Page 183 U. S. 541
There was no invalidity in the fact of additional assessments.
Indeed, the claim in the petition was wholly for taxes based upon
additional assessments for prior years, and when this Court
adjudged that that petition upon its face showed a tax claim
against the property, it was an adjudication in favor of the
validity of such additional assessments.
The filing of the intervening petition and the final
adjudication thereon were in time. It is true the petition was not
filed until after the sale had been confirmed and the master's deed
executed, and that, by the decree of confirmation the receiver was
directed to then turn over the property to the purchasers. It may
be also conceded as generally true that a retention by a receiver,
after the time for the delivery of the property in his hands, is as
agent of the purchasers.
Very v.
Watkins, 23 How. 469,
64 U. S. 474.
But the filing of the petition, as well as the mandate from this
Court, was within the time expressly named in the decree, as
follows:
"Any such claim for indebtedness, obligations, or liabilities
which shall not have been presented in writing to the receiver, or
filed with the clerk of this Court prior to the time of delivery of
possession of such property, shall be presented for allowance and
filed within six months after the first publication by the receiver
of a notice to the holders of such claims to present the same for
allowance."
Indeed, the petition was filed while the property was still in
the hands of the receiver, and that would seem to bring the action
of the intervener within the terms of the first clause of the
quotation just made. At any rate, everything in the district court,
even its final adjudication, was before October 23, 1899, the time
fixed in the notice for the cutting off of claims against the
property given at the instance of the grantee of the purchasers,
to-wit, the Santa Fe Pacific Railroad Company. That the receiver
had been discharged before such mandate was filed or final
proceedings had is immaterial, as the grantee of the purchaser (the
present owner of the property) had made itself a party to the
record by coming in and praying for the publication of a notice to
cut off claims.
Neither can the Santa Fe Company claim that is was misled
Page 183 U. S. 542
in any way as to its liability for these taxes, for not only by
the terms of the decree was the sale to be made subject to any
indebtedness that might subsequently be charged against the
property prior in lien to that of the mortgages foreclosed, but
also, on the confirmation of the sale and before it took title from
the purchasers at such sale, the order specifically included within
the obligations which must be assumed any taxes which might
"finally be adjudged to be a lien upon the property."
No order was necessary for retaking possession. By the terms of
the decree, the court, although the actual possession was
surrendered, retained a constructive control which it could enforce
whenever its orders were not complied with, and the present
proceeding was to establish that the property was subject to these
taxes. The proceeding was initiated, not only when there was a
qualified control, but also an actual possession of the property,
and no subsequent orders of the court put an end to its
jurisdiction to proceed to an inquiry as to the validity of the tax
lien. The reversal of the order of dismissal by this Court
reinstated the proceeding in the trial court as of the date of the
order of dismissal. If the decree is not complied with by the
present owners of the property, it may then become necessary to
order a retaking of possession.
While the description in the intervening petition of the
property sought to be subjected to the taxes may be indefinite, the
property is sufficiently described in the decree, and it must be
assumed that the testimony warranted the description.
These are all the matters we deem it necessary to notice, and
are of opinion that in the record, so far as we are at liberty to
examine it, is disclosed no error prejudicial to the rights of the
appellants.
On its cross-appeal, the territory, which had obtained a
properly certified statement of facts sufficient for the questions
it presents, contends that it was entitled to recover the amount of
the tax upon 60.7 miles of road, as fixed by the assessments,
whereas the court found that there were only 55.5 miles subject to
taxation, and made the award upon the basis of assessments upon
that extent of road. It insists that the assessments were
conclusive of the amount due because no appeals to correct
Page 183 U. S. 543
them were taken, as permitted by law. It further says that, in
any event, the statement made in the pleas and sworn to by the
solicitor for the trust company and the receiver,
"that about 58 miles of said right of way in said county and
territory was and is through land which was not government land,
but which belonged to private individuals or corporations, and was
acquired by the railroad company under and through the right
conferred upon it by said act of Congress,"
should be held conclusive as to the number of miles subject to
taxation. The trial court found, as stated, that there were 55.5
miles so subject. This finding was approved by the supreme court,
and is conclusive upon us as to the fact, and if in truth there
were only so many miles of road subject to taxation, it would be
inequitable to adjudge a greater liability, for that would be
enforcing taxes upon property which was not subject to
taxation.
Again, it is contended that the territory was entitled to a 25
percent penalty under section 4035 of the Compiled Laws of New
Mexico, 1897, which reads:
"If any person liable to taxation shall fail to render a true
list of his property as required by the preceding three section,
the assessor shall make out a list of the property of such person,
and its value, according to the best information he can obtain, and
such person shall be liable, in addition to the tax so assessed, to
the penalty of 25 percent thereof, which shall be assessed and
collected as a part of the taxes of such person."
It is enough to say that no such penalty was claimed in the
intervening petition. Penalties are not favored in equity, and
seldom will a chancellor enforce penalties in favor of a party who
does not ask for them. Again, by the terms of the section, the
penalty is to be "assessed and collected as a part of the taxes,"
and the record shows no assessment of the penalty.
A final contention is in respect to interest. Section 4066 of
the Compiled Laws provides:
"On the first day of January in each year, half of the unpaid
taxes for the year last past, and on the first day of July in each
year the remaining half of the unpaid taxes for the year last past,
shall become delinquent, and shall draw interest at the
Page 183 U. S. 544
rate of twenty-five percent per annum, but the collector shall
continue to receive payments of the same after the first day of
January and July until the day of sale."
The district court ignored the provisions of this section, and
allowed interest at the rate of six percent per annum from the
times the taxes became delinquent in the several years. The supreme
court modified this, and allowed interest only from October 5,
1899, the date of the decision in the district court. In 1899, the
legislature passed a new statute in reference to taxes. Chap. 22,
p. 47, Laws of New Mexico, 1899. By section 10 of that act, section
4066 of the Compiled Laws was in terms amended, and, in lieu of the
25 percent, different and graded penalties were enforced. By
section 34 of that act,
"the time for the payment of all taxes now delinquent is hereby
extended to May 1, 1899, and when the same may be in litigation at
the date of the passage of this act until such litigation be
determined."
Other provisions of this section, taken in connection with a
statute passed at the same session of the legislature (chap. 52, p.
106, Laws, 1899), referred to by the supreme court of the territory
in its opinion, may render it doubtful whether the legislature
intended to remove the penalty of 25 percent interest in respect to
this property; for such interest in tax proceedings is in the
nature of a penalty. Yet, irrespective of this statutory question,
we are of opinion that there was no error in refusing to enforce
this charge against the property. The assessment was made in gross
upon 60.7 miles of road, without specification of the particular
miles, other than that they were
"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."
The finding of the court shows that no such length of railroad
was subject to taxation, but only 55.5 miles, and those were
specified and described. The owners of the road were therefore
justified in contesting their liability to such assessment and
taxation in gross, and until there was an identification of the
property subject to taxation and a determination of the amount of
taxes due, it would be inequitable to charge penalties for
nonpayment.
Lake Shore & Michigan Southern Railway
Co.
Page 183 U. S. 545
v. People, 46 Mich.193;
Redwood County v. Winona
& St. Peter Land Co., 40 Minn. 512, 522. This is not a
suit brought by a property holder to restrain the collection of
taxes, in which case it would be incumbent upon him to pay, or
tender, the amount conceded to be due, but one in which the
authorities are the moving party seeking to collect taxes, and in
which the liability
in toto is denied, and the property
subject to taxation not fully identified or the amount of taxes
determined until the final judgment.
Viewing the proceedings from an equitable standpoint, we see no
error in refusing interest prior to the decree.
The decree of the Supreme Court of New Mexico is affirmed,
each party to pay the costs of its appeal to this Court.
