it was said that the practice of stipulating | failed to plead the nature of his estate in the a bill of exceptions without the sanction of property, whether it be in fee, for life, or for the judge cannot be commended; and if such a term of years. fact be brought to the attention of the court before the argument of the case, the appeal will be dismissed. In Coburn v. Murray, 2 Me. 336, it was held that a bill unauthenticated by the trial judge cannot be given validity by consent of counsel. We are referred to no decision of this court on the precise question whether counsel can stipulate the correctness of a bill of exceptions not signed by the trial judge. But we think that on principle this cannot be done, and we regard the cases just cited as sound statements of the law. Accordingly, our conclusion is that the errors of the trial court alleged in the bill of exceptions, unauthenticated by the signature of the judge who sat at the trial, cannot be considered by us. The defendant's demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, having been overruled, and the defendant not having elected to stand on his demurrer, but having availed himself of the leave of the court to file an answer, and his several objections to the admission of evidence at the trial not having been brought before us by a proper bill of exceptions, all that is left for us to consider is whether, on the facts found by the court below, the plaintiff was entitled to judgment. Those facts, briefly stated, were that the plaintiff and his grantors on April 19, 1881, entered in actual possession of the land in dispute; put substantial improvements there on; and continued in possession, under claim of right, and adversely against the defendant and all others, till on April 29, 1891, the defendant, without right or title so to do, entered upon the said land, and ejected the plaintiff therefrom; that the plaintiff was the owner of an undivided one-half part or interest of, in, and to said land in the complaint. described, and that the defendant wrongfully withheld the same from him. From their findings the court drew the conclusions of law that the plaintiff was entitled to recover possession of the said land in dispute, being the undivided one-half part or interest of, in, and to said lot No. 4, in said block No. 4, in said town of Juneau, against said defendant and all persons claiming under him, and to recover a judgment for said possession and for costs. The appellant now contends that, under § 318 of Hill's Oregon Code (which by the act of May 17, 1884-23 Stat. at L. 24-was made applicable to Alaska, and which is in the following terms: "The plaintiff in his complaint shall set forth the nature of his estate in the property, whether it be in fee, for life, or for a term of years, and for whose life, or the duration of such term, and that he is entitled to the possession thereof, and that the defendant wrongfully withholds the same from him to his damage such sum as may be therein claimed"), the plaintiff Without stopping to consider whether the defendant could be heard to again raise a question that had been decided against him. on his demurrer to the complaint, we think that the objection is not a sound one. Tho plaintiff alleged, and the court has found, that for more than nine years prior to April 29, 1891, he and his grantors were the owners by right of prior occupancy and actual possession of the land in dispute. In the condition of things in Alaska under the act of May, 1884, providing a civil gov erument for Alaska, and under the 12th section of the act of March 3, 1891 (26 Stat. at L. 1100), the only titles that could be held were those arising by reason of possession and continued possession, which might ultimately ripen into a fee-simple title under letters patent issued to such prior claimant when Congress might so provide by extending the general land laws or otherwise. Davenport v. Lamb, 13 Wall. 418, 20 L. ed. 655. In Bennett v. Harkrader, 158 U. S. 447, 39 L. ed. 1048, 15 Sup. Ct. Rep. 863, brought to this court by a writ of error to the district court of the United States for the district of Alaska, it was said by Mr. Justice Brewer, in disposing of a somewhat similar objection: "Where the complaint alleges that the plaintiff is entitled to the possession of certain described property, which is unlawfully detained by the defendant and the possession of which the plaintiff prays to recover, a general verdict for the plaintiff is a finding that he is entitled to the possession of all the property described in the complaint. Again, in this action, brought under a special statute of the United States in support of an adverse claim, but one estate is involved in the controversy. No title in fee is or can be established. That remains in the United States, and the only question presented is the priority of right to purchase the fee. Hence the inapplicability of a statute regulating generally actions for the recovery of real es tate, in which actions different kinds of title may be sufficient to sustain the right of recovery. It would be purely surplusage to find in terms a priority of the right to purchase when that is the only question which can be litigated in such statutory action." This principle applies more strongly to the present case, in which the real nature of the plaintiff's estate in the property is truly alleged as ownership by right of prior occupancy and actual possession, and was so found to be by the trial court. The same view of the nature of a title to a lot in a townsite in Alaska, under these acts of Congress, was expressed by the district court of the United States for the district of Alaska, in the case of Carroll v. Price, 81 Fed. Rep. 137. As, then, the only kind of estate that could be held was that of possession, it was sufficient for the plaintiff to allege that his was of that nature. It is next contended on behalf of the plain cember 4, 1899. tiff in error that, even if the complaint Submitted October 26, 1899. Decided Deshould be held otherwise sufficient, yet the action must fail because coming within § 3524, Hill's (Oregon) Code, which is as fol lows: "In an action to recover the possession of any land, tenement, or other real property, where the entry is forcible, or where the possession thereof is unlawfully held by force, the merits of the title shall not be inquired into; and three years' quiet possession of the premises immediately preceding the commencement of such action by the party in possession, or those under whom he holds, may be pleaded in bar thereof, unless the estate of such party in the premises is ended.” APPEAL from the decree of the Circuit Court of the United States for the Western District of Texas, dismissing a bill for injunction against the collection of a franchise tax. Modified to a dismissal without prejudice and as modified affirmed. Statement by Mr. Chief Justice Fuller: By an act of the state of Texas approved April 3, 1889 (Tex. Laws 1889, chap. 78, p. 87), foreign corporations for pecuniary prof it, with some exceptions not material here, It is argued that, as the complaint was desiring to do business in the state of Texas, filed in the court below May 25, 1896, more were required to file with the secretary of than five years from the day of entry al-state a duly certified copy of their articles of leged in the complaint, and as the defendant incorporation and obtain a permit to transact pleaded in bar of the action the three years' business in the state, paying a fee therefor, quiet possession of the premises immediately the permit not to be issued for a period longpreceding its commencement, the defendant er than ten years from the date of the filis entitled to a judgment of reversal. ing. By an act approved May 11, 1893 (Laws 1893, chap. 102, § 5, p. 158), it was provided "that each and every private domestic corporation heretofore chartered, or that may be hereafter chartered, under the laws of this state, and each and every foreign corporation that has received or may hereafter receive a permit to do business under the laws of this state, in this state, shall pay to the secretary of state, annually, on or be fore the first day of May, a franchise tax of ten dollars. Any such corporation which shall fail to pay the tax provided for in this action shall, because of such failure, forfeit their charter." If this were indeed an action in forcible entry and detainer, and as the complaint shows on its face that the defendant's possession was longer than three years prior to the commencement of the action, then the defendant was entitled to have had his demurrer sustained. But he did not stand on his demurrer, but availed himself of the court's leave to answer; and hence it might well be questioned whether it was competent for him to again raise in his answer a question already ruled against him under his demurrer. But this it is unnecessary to consider because it is altogether clear that, on the complaint and the facts found, this was not an action for a forcible entry and detainer, under the section of the Oregon Code pleaded by the defendant, but was an action of eject-en, damaged, or destroyed for, or applied to, ment to which the statute pleaded did not apply. The judgment of the District Court of the United States for the District of Alaska is affirmed. (175 U. S. 269) v. J. W. MADDEN, Secretary of State. Section 17 of article 1 of the Constitution of Texas, ratified February 17, 1876, provided: "No person's property shall be tak public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the state, such compensation shall be first made, or secured, by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the legislature, or created under its authori ty, shall be subject to the control thereof." And article 8: "Sec. 1. Taxation shall be equal and uniform. All property in this state, whether Injunction against collection of franchise owned by natural persons or corporations, tax-remedy at law. other than municipal, shall be taxed in proAn injunction will not be granted against the tained as may be provided by law. The legportion to its value, which shall be ascercollection of a franchise tax from a foreign corporation, where there is nothing to indi-islature may impose a poll tax. It may also cate inability of the corporation to pay the impose occupation taxes, both upon natural tax, or of the defendant to respond in judg-persons and upon corporations, other than ment if the tax be found to have been il-municipal, doing any business in this state. legally exacted, and no special circumstances It may also tax incomes of both natural perare set up justifying the exercise of equity sons and corporations, other than municipal, Jurisdiction, other than consequences which except that persons engaged in mechanical and agricultural pursuits shall never be required to pay an occupation tax; the complainant can easily avert without loss or injury by paying the tax, although the validity of the law might be more conveniently tested by the party denying it by bill in equity than by action at law. [No. 68.] equal and uniform upon the same class of "Sec. 2. All occupation taxes shall be subjects within the limits of the authority levying the tax; "Sec. 4. The power to tax corporations and corporate property shall not be surrendered or suspended by act of the legislature, by any contract or grant to which the state shall be a party." Messrs. M. M. Crane and T. A. Fuller for appellee. Mr. Chief Justice Fuller delivered the opinion of the court: "Sec. 17. The specification of the objects The rule is that the collection of taxes unand subjects of taxation shall not deprive the der state authority will not be enjoined by a legislature of the power to require other sub-court of the United States on the sole ground jects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this Constitution." In July, 1896, the Arkansas Building & Loan Association, a corporation of the state of Arkansas, filed its charter with the secretary of the state of Texas, and paid the fee required by the act of 1889, as well as the franchise tax of $10 required to be paid by the act of 1893, and received a permit to carry on its business in Texas for ten years. that the tax is illegal, but it must appear that the party taxed has no adequate remedy by the ordinary processes of the law, and that there are special circumstances bringing the case within some recognized head of equity jurisdiction. Pittsburgh, C. C. & St. L. R. Co. v. West Virginia Bd. of Public Works, 172 U. S. 32, 43 L. ed. 354, 19 Sup. Ct. Rep. 90; Shelton v. Platt, 139 U. S. 591, 35 L. ed. 273, 11 Sup. Ct. Rep. 646; Dows v. Chicago, 11 Wall. 108, 20 L. ed. 65. In Dows v. Chicago, which has been frequently cited with approval, it was said by Mr. Justice Field, speaking for the court: "The party of whom an illegal tax is col by action against the officer making the collection or the body to whom the tax is paid. Here such remedy existed. If the tax was illegal, the plaintiff protesting against its enforcement might have had his action, after it was paid, against the officer or the city to recover back the money, or he might have prosecuted either for his damages. No irreparable injury would have followed to him from its collection. Nor would he have been compelled to resort to a multiplicity of suits to determine his rights." The provisions of the acts of 1889 and 1893 were carried into the Revised Statutes of the state of Texas of 1895. By an act approved April 30, 1897, Tex. Laws 1897, chap. 104, Plected has ordinarily ample remedy, either 140), and an act approved May 15, 1897 (Tex. Laws 1897, chap. 120, p. 168), these provisions were amended so as, among other things, to increase the annual franchise tax thereto fore required, to graduate it according to the capital stock of the corporation, to provide that the failure to pay it should work a forfeiture of the right to do business in the state, and that the secretary of state should declare such forfeiture. The taxes imposed by these amendments were less upon domestic corporations than upon foreign corporations. Thereafter the Arkansas Building & Loan Association offered to pay the secretary of state the $10 required by the prior law as the franchise tax for the ensuing year, but the secretary refused to accept that sum and to give to the company the franchise tax receipt therefor, and demanded the larger sum required by the law of 1897, which amounted to $205. The company then filed a bill in the circuit court of the United States for the western district of Texas against the secretary of state of Texas, setting up the foregoing facts, and charging that the act of 1897 was void because in contravention of the Constitution of Texas, and of the commerce clause of the Constitution of the United States and of the Fourteenth Amendment to that instrument, and praying an injunction against the secretary of state restraining him from the collection of said alleged illegal tax, and from declaring complainant's permit and right to do business in the state forfeited by failure to pay the tax, and for general relief. To this bill defendant demurred, assigning as grounds that it set up no cause of action; that it disclosed that complainant had an adequate remedy at law; and that it showed that the demand made of complainant was "in compliance with a valid existing law of the state of Texas." The circuit court held that the law was valid, and dismissed the bill. These decisions are in harmony with the 16th section of the judiciary act of 1789, now $723 of the Revised Statutes, which declared "suits in equity shall not be sustained in the rule as then, and still existing, that either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law." And on principle, the interference of the with the collection of state taxes, or with courts of the United States by injunction state administration of matters of internal police, can only be justified in a plain case not otherwise remediable. is that the Arkansas corporation entered on The grievance complained of in this case the transaction of business in Texas at a time when the annual franchise or license tax was $10 and that it is now required to pay $205 by a subsequent law, which, it alleges, is unconstitutional. is the forfeiture of the right to do business The penalty denounced on failure to pay in the state, and complainant averred that if that forfeiture were declared it would be subjected to irreparable injury and to a multiplicity of suits. It is on these grounds of equity interposition that the aid of the circuit court was sought to restrain the discharge by a state officer of duties imposed on him by the law of the state, and to adjudicate as to the validity of that law. But the bill of complaint did not set forth Messrs. F. E. Albright, L. A. Smith, and any facts tending to show that complainant Drew Pruit for appellant. could not escape the forfeiture by payment of the $205 under protest, and recover back the money so paid if the law should be held void. We assume that the payment would, under the circumstances detailed, be compulsory and not voluntary, and no reason is perceived why the rule permitting recovery back would not apply. of the corporation may be also members of a church and of a monastic order or sisterhood of that church, conducting the hospital under its auspices. [No. 76.] Argued October 27, 1899. Decided Decem ber 4, 1899. Appeals of the District of Columbia re See same case below, 12 App. D. C. 453. Statement by Mr. Justice Peckham: pellant to enjoin the defendant from paying This is a suit in equity, brought by the apany moneys to the directors of Providence Hospital, in the city of Washington, under That rule as applicable here is that an action will lie for money paid, under compulsion, on an illegal demand, the person making it being notified that his right to do so APPEAL from a judgment of the Court of is contested. Elliott v. Swartwout, 10 Pet.versing the decision of the Supreme Court 137, 9 L. ed. 373; Bend v. Hoyt, 13 Pet. 263, in a suit to enjoin the payment of moneys to 10 L. ed. 154; Philadelphia v. The Collector, a hospital under an appropriation by act of 5 Wall. 720, 731, sub nom. Philadelphia v. Congress. Affirmed. Diehl, 18 L. ed. 614, 616; Swift Co. v. United States, 111 U. S. 22, 28 L. ed. 341. The principle is thus stated by Gaines, J., in Taylor v. Hall, 71 Tex. 213, 9 S. W. 141: "The law is established that when a person by the compulsion of the color of legal process, or of seizure of his person or goods, pays money unlawfully demanded he may rean agreement entered into between the comcover it back." The fact that the defendant is a state of-missioners of the District of Columbia and ficial is not in itself a defense, and our at the directors of the hospital, by virtue of the tention has been called to no statute of Texas authority of an act of Congress, because of which substitutes any other for the common- the reasons stated in the bill of complaint. the alleged invalidity of the agreement for Inasmuch as the bill contains nothing to In that bill complainant represents that he indicate inability on the one hand to pay the is a citizen and taxpayer of the United franchise tax in question, or, on the other, to States and a resident of the District of Corespond in judgment if it were found to have lumbia, that the defendant is the Treasurer respond in judgment if it were found to have of the United States, and the object of the been illegally exacted, and sets up no special suit is to enjoin him from paying to or on circumstances justifying the exercise of account of Providence Hospital, in the city equity jurisdiction other than consequences of Washington, District of Columbia, any which complainant can easily avert, without loss or injury, we are of opinion that it can-moneys belonging to the United States, by virtue of a contract between the surgeon general of the army and the directors of that hospital, or by virtue of an agreement between the commissioners of the District of Columbia and such directors, under the authority of an appropriation contained in the sundry civil appropriation bill for the District of Columbia, approved June 4, 1897. law rule. not be sustained. It is quite possible that in cases of this sort the validity of a law may be more conveniently tested, by the party denying it, by a bill in equity than by an action at law, but considerations of that character, while they may explain, do not justify, resort to that mode of proceeding. Decree modified to a dismissal without prejudice, and as so modified affirmed. Complainant further alleged in his bill: "That the said Providence Hospital is a private eleemosynary corporation, and that to the best of complainant's knowledge and belief it is composed of members of a monastic order or sisterhood of the Roman Catholic Church, and is conducted under the auspices of said the church; that the title to its property is vested in the 'Sisters of Charity of Emmitsburg, Maryland;' that it was incorporated by a special act of Congress approved April 8, 1864, whereby, in addition to the usual powers of bodies corporate and politic, it was invested specially with 'full power and all the rights of opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatment and care of said corporation.' Appropriation of money to hospital-sectarian character of hospital-constitutional provision against religious establishment. The appropriation by Congress of money to a hospital, as compensation for the treatment and cure of poor patients under a contract, does not constitute an appropriation to a religious society in violation of the constitutional provision against laws respecting an "That in view of the sectarian character of establishment of religion, where the hospital said Providence Hospital and the specific and is incorporated under an act of Congress, and limited object of its creation, the said conits property is acquired in its own name and tract between the same and the surgeon genfor its own purposes, and its business man-eral of the army and also the said agreement supervision, or control by any ecclesiastical between the same and the commissioners of authority whatever, although the members the District of Columbia are unauthorized by aged in its own way, subject to no visitation, law, and, moreover, involve a principle and | for such treatment, to be fixed by the hospia precedent for the appropriation of the tal authorities, but such persons shall have funds of the United States for the use and the privilege of selecting their own physisupport of religious societies, contrary to the cians and nurses, and in case physicians and article of the Constitution which declares nurses are selected other than those assigned that Congress shall make no law respecting by the hospital, it shall be at the expense of a religious establishment, and also a prece- the patient making the request. dent for giving to religious societies a legal agency in carrying into effect a public and civil duty which would, if once established, speedily obliterate the essential distinction between civil and religious functions. "That the complainant and all other citizens and taxpayers of the United States are injured by reason of the said contract and the said agreement, in virtue whereof the public funds are being used and pledged for the advancement and support of a private and sectarian corporation, and that they will suffer irreparable damage if the same are allowed to be carried into full effect by means of payments made through or by the said defendant out of the Treasury of the United States, contrary to the Constitution and declared policy of the government." "And said Providence Hospital agrees to always maintain a neutral zone of forty (40) feet around said isolating building or ward and grounds connected therewith to which patients of said ward have access. "As witness the signatures and seals of John W. Ross, John B. Wight, and Edward Burr, acting commissioners of the District of Columbia, and the corporate seal of the said The Directors of Providence Hospital and the signature of president thereof, this sixteenth day of August, A. D. 1897." The contract, if any, between the directors and the surgeon general of the army is not set forth in the bill, and the contents or conditions thereof do not in any way appear. The defendant demurred to the bill on the ground that the complainant had not in and The agreement above mentioned, between by his bill shown any right or title to mainthe commissioners of the District of Colum-tain the same; also upon the further ground bia and the directors of Providence Hospital, is annexed to the bill, and is as follows: "Articles of agreement entered into this sixteenth day of August, in the year of our Lord one thousand eight hundred and ninetyseven, by and between the commissioners of the District of Columbia and the directors of Providence Hospital, a body corporate in said District, whereby it is agreed on the part of the commissioners of the District of Columbia "That they will erect on the grounds of said hospital an isolating building or ward for the treatment of minor contagious diseases, said building or ward to be erected without expense to said hospital, except such as it may elect, but to be paid out of an appropriation for that purpose contained in the District appropriation bill approved March 3, 1897, on plans to be furnished by the said commissioners, and approved by the health officer of the District of Columbia, and that when the said building or ward is fully completed it shall be turned over to the officers of Providence Hospital, subject to the following provisions: that the complainant had not stated such a case as entitled him to the relief thereby prayed or any relief as against the defendant. Complainant joined issue upon the demurrer, and at a term of the supreme court of the District of Columbia the demurrer was overruled and the injunction granted as prayed for. 26 Wash. Law Rep. 84. Upon appeal to the court of appeals of the District the judgment was reversed, and the case remanded to the supreme court, with directions to dismiss the bill. 12 App. D. C. 453. Whereupon the complainant appealed to this court. Mr. Joseph Bradfield for appellant. Assistant Attorney General Hoyt and Attorney General Griggs for appellee. Mr. Justice Peckham, after stating the facts, delivered the opinion of the court: maintenance of this suit on account of an alPassing the various objections made to the leged defect of parties, and also in regard to the character in which the complainant sues, merely that of a citizen and taxpayer of the United States and a resident of the District of Columbia, we come to the main question as to the validity of the agreement between the commissioners of the District and the directors of the hospital, founded upon the ap "First. That two thirds of the entire ca pacity of said isolating building or ward shall be reserved for the use of such poor patients as shall be sent there by the commissioners of the District from time to time through the proper officers. For each such patient said commissioners and their suc-propriation contained in the act of Congress, cessors in office are to pay at the rate of two hundred and fifty dollars ($250) per annum, for such a time as such patient may be in the hospital, subject to annual appropriations by Congress. the contention being that the agreement if carried out would result in an appropriation by Congress of money to a religious society, thereby violating the constitutional provision which forbids Congress from passing any law respecting an establishment of religion. Art. 1 of the Amendments to Constitution. "Second. That persons able to pay for treatment may make such arrangements for entering the said building or ward as shall be determined by those in charge thereof, The appropriation is to be found in the and such persons will pay the said Provi- general appropriation act for the govern dence Hospital reasonable compensation ment of the District of Columbia, approved |