in view the stability necessary to be afforded to decrees, especially of courts of last resort, where disturbance thereof is not essential to the protection of the real equities of the parties before the court, we think the review asked for should be denied. In our opinion, the stability of judgments, and thus the protection of rights acquired in reliance upon them, are such as, under the peculiar circumstances of this case, to make the review asked for inequitable." pointed by North Carolina and Tennessee | be allowed if such allowance would result located and marked the southern portion of in mischief to innocent parties, and having the dividing line between the two states, and prepared a map roughly indicating it. After being lost for many years, in December, 1903, or early in 1904, this was found among old, discarded papers stored in the basement of the Capitol at Nashville. Relying on the map as newly discovered evidence, adequate, when considered in connection with that formerly introduced, to demonstrate that the dividing line between the two states ran along Slick Rock creek, and to establish the invalidity of the Tennessee grant under which Hebard claimed, petitioners began the present proceeding. Likewise relying in part upon the same map, the state of North Carolina in March, 1909, presented an original bill in this court against Tennessee, claiming that the true line between them ran along Slick Rock creek, and praying an adjudication to that effect. In an opinion recently announced, the contention of North Carolina was sustained. North Carolina v. Tennessee, 235 U. S. 1, 59 L. ed., 35 Sup. Ct. Rep. 8. The function of a bill of review filed for newly discovered evidence is to relieve a meritorious complainant from a clear miscarriage of justice where the court is able to see, upon a view of all the circumstances, that the remedy can be applied without mischief to the rights of innocent parties, and without unduly jeopardizing the stability of judicial decrees. The remedy is not a matter of absolute right, but of sound discretion. Thomas v. Brockenbrough, 10 Wheat. 146, 6 L. ed. 287; Ricker v. Powell, 100 U. S. 104, 107, 25 L. ed. 527, 528; Craig v. Smith, 100 U. S. 226, 233, 25 L. ed. 577, 580; 2 Dan. Ch. Pr. *1577; Story, Eq. Pl. § 417; Street, Fed. Eq. Pr. £§ 2143, 2156, 2159; Gibson, Suit in Ch. §§ 1058, 1062. Notwithstanding our conclusion in the proceedings between the states of North Carolina and Tennessee, where the established facts in respect to the location of the dividing line were, for the most part, the same as those disclosed in the record now before us, we think the decree of the Circuit Court of Appeals was right, and it is accordingly affirmed. Mr. Justice Day took no part in the consideration and decision of this case. (235 U. S. 292) CHOCTAW, OKLAHOMA, & GULF RAIL- V. JOHN A. HARRISON, as Sheriff of Pitts- TAXATION (§ 8*)-FEDERAL AGENCY-OC- The gross revenue tax imposed by Okla. act of May 26, 1908, § 6,† upon coal miners or producers equal to a specified total coal produced, "which shall be in adpercentage of the gross receipts from the dition to the taxes levied and collected upon an ad valorem basis upon such mining property and and the appurtenances thereunto belonging," is an occupation or privilege tax which cannot be exacted from a Federal instrumentality acting under congressional authority, such as the corporate act of June 28, 1898 (30 Stat. at L. 495, lessee, under the authority of the Cartis chap. 517), of coal mines upon segregated and unallotted lands belonging to the Choctaw and Chickasaw Indian tribes. The trial court regarded the newly discovered evidence as favorable, rather than in opposition, to the original decree, and accordingly dismissed the petitioners' bill. The circuit court of appeals, in a well-considered opinion, upheld the result, but for a different reason, saying: "In our opinion, taking into account not only the speculative purchase by appellants, but also the good-faith purchase by the Smoky Mountain Company, a case is not presented which appeals to the equitable discretion of the court to allow the review of a decree upon the ground alone of newly discovered evi- Argued November 3 and 4, 1914. Decided November 30, 1914. dence. We rest our decision solely upon this proposition. Bearing in mind the rule that [Ed. Note.-For other cases, see Taxation, Cent. Dig. $ 21: Dec. Dig. § 8.* For other definitions, see Words and Phrases, First and Second Series, Occupation Tax.] this bill of review for newly discovered evi A United States for the Eastern District dence is not of right, no matter how per- of Oklahoma to review a decree sustaining suasive of error in the original decree the a demurrer to a bill to enjoin the collection new evidence may be, and that it should not of a gross revenue tax from coal miners or *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes † Laws 1908, c. 71, art. 2. producers. Reversed and remanded for fur- should be operated and the royalties paid ther proceedings. The facts are stated in the opinion. Messrs. J. G. Gamble, C. O. Blake, and M. L. Bell for appellant. Mr. J. L. Hull and Mr. Charles West, Attorney General of Oklahoma, for appellee. into the Treasury of the United States; that the royalty should be 15 cents per ton, with power in the Secretary of the Interior to reduce or advance the same according to the best interests of the tribes; and that all lessees should pay fixed sums as advanced royalties. In harmony with the provisions of the Mr. Justice McReynolds delivered the Curtis act appellant secured from the duly opinion of the court: By an original bill filed July 19, 1909, in the circuit court of the United States, eastern district of Oklahoma, appellant sought to enjoin the sheriff of Pittsburg county from collecting taxes claimed by the state upon the gross sale of coals dug from mines belonging to the Choctaw and Chickasaw Indians, which it leased and operated. The claim was based on the Oklahoma statute which provides for a gross revenue tax; and was resisted upon the ground (among others) that in reality the demand was for an occupation or privilege tax to which the appellant could not lawfully be subjected, because, as a Federal instrumentality acting under Congressional authority, it had leased and was operating mines to which the Indians held title. A general demurrer was sustained, and the cause is here by direct appeal. No objection has been interposed to the forum selected or the procedure adopted. Meyer v. Wells, F. & Co. 223 U. S. 298, 56 L.. ed. 445, 32 Sup. Ct. Rep. 218. Appellant is a railroad corporation with power to lease and operate coal mines. In the region formerly known as Indian Territory, now within the state of Oklahoma, -the Choctaw and Chickasaw Indians, as wards of the United States, own a large area of segregated and unallotted lands con taining valuable coal deposits which are not subject to taxation by the state Marchie Tiger v. Western Invest. Co. 221 U. 8. 256, 310, 312, 55 L. ed. 738, 747, 748, 31 ¦ Sup. Ct. Rep. 578; Ex parte Webb, 225 U. S. 663, 684, 56 L. ed. 1248, 1257, 32 Sup. Ct. Rep. 769. The act of Congress approved June 28, 1898 (30 Stat. at L. 495, 510, chap. 517). "Curtis act," ratified, confirmed, and put into effect the Atoka agreement of April 23, 1897, between the United States and the Choctaws and Chickasaws, which provided that their coal lands should remain common property of the members of the tribes; that the revenues derived therefrom should be used for the education of their children; that the mines thereon should be under the supervision and control of two trustees appointed by the President, and subject to rules prescribed by the Secretary of the Interior; that all such mines appointed trustees leases of certain mines, obligating itself to take out annually specified amounts of coal, and to pay the stipulated royalty. It proceeded actively to develop these, either directly or through its agent, and for some years before the present suit was begun took therefrom large qnantities of coal, and fully complied with the obligations assumed. Section 6 of the Oklahoma statute approved May 26, 1908, entitled, "An Act Providing for the Levy and Collection of a Gross Revenue Tax from Persons, Firms, Corporations, or Associations Engaged in the Mining or Production of Coal, ." provides: "Every person, firm, association, or corporation engaged in the mining, or production, within this state, of coal... shall, within thirty days after the expiration of each quarter annual period expiring respectively on the 1st day of July, October, January, and April of each year, file with the state auditor a statement under oath, on forms prescribed by him, showing the location of each mine operated by such person, firm, association, or corporation during the last preceding quarter annual period, the kind of mineral; . the gross amount thereof produced; the actual cash value thereof; and shall, at the same time, pay to the state treasurer a gross revenue tax, which shall be in addition to the taxes levied and collected upon an ad valorem basis upon such mining property and the appurtenances thereunto belonging, equal to 2 per centum of the gross receipts from the total production of coal therefrom An amendment of March 27, 1909, changed the quarterly periods and reduced the rate on receipts to of 1 per centum. Appellants furnished the auditor with a statement of the output of the mines operated, but declined to pay the tax assessed upon the gross receipts from sales. Thereupon the sheriff, under directions of the auditor, was about to enforce the demand by a levy, and the present bill was filed to restrain him. From the foregoing it seems manifest that the agreement with the Indians imposed upon the United States a definite duty in respect to opening and operating the coal mines upon their lands, and appellant is the instrumentality through which this obligation is being carried into effect. Such an agency cannot be subjected to an occupation or privilege tax by a state. M'Cullock v. Maryland, 4 Wheat. 316, 425, 4 L. ed. 579, 606; Farmers & M. Sav. Bank v. Minnesota, 232 U. S. 516, 58 L. ed. 706, 34 Sup. Ct. Rep. 354. But it is insisted that the statute, rightly understood, prescribed only an ad valorem imposition on the personal property owned by appellant, the coal at the pit's mouth,-which is permissible, according to many opinions of this court. Thomson v. Union P. R. Co. 9 Wall. 579, 19 L. ed. 792; Union P. R. Co. v. Peniston, 18 Wall. 5, 21 L. ed. 787; Central P. R. Co. v. California, 162 U. S. 91, 40 L. ed. 903, 16 Sup. Ct. Rep. 766; Thomas v. Gay, 169 U. S. 264, 42 L. ed. 740, 18 Sup. Ct. Rep. 340. The court below held that the effect of the act was to lay a valid tax on personalty, and the same result was subsequently reached by the supreme court of Oklahoma. McAlester-Edwards Coal Co. v. Trapp, 43 Okla. 510, 141 Pac. 794. The United States. district court for the western district of Oklahoma arrived at a different conclusion. Missouri, K. & T. R. Co. v. Meyer, 204 Fed. 140. Neither state courts nor legislatures, by giving a tax a particular name, or by the use of some form of words, can take away our duty to consider its real nature and effect. Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217, 227, 52 L. ed. 1031, 1037, 28 Sup. Ct. Rep. 638. A tax upon a merchant's, manufacturer's, or miner's gross sales is not the same thing as one on his stock treated as property. Cooley, Taxn. 3d ed. p. 1095. The former is upon his business. In effect, the Oklahoma act prescribes an occupation tax (Ohio Tax Cases, 232 U. S. 576, 592, 58 L. ed. 738, 745, 34 Sup. Ct. Rep. 372); and, accepting as true the allegations of appellant's bill, we think it cannot lawfully be subjected thereto. The decree of the court below is reversed, and the cause remanded for further proceedings in conformity with this opinion. Reversed. CONTINENTAL & COMMERCIAL TRUST BANKRUPTCY (§ 467*)-APPEAL-REVIEW 1. The action of the referee in bank- 2. In the absence of a definite and authoritative construction by the Illinois courts of the provisions of Hurd's (Ill.) Rev. Stat. chap. 95, §§ 1, 4, relative to the continuation of a chattel mortgage after three years, the lien of such a mortgage in that state will be deemed, under those provisions, to expire as to judgment creditors three years after recordation, subject to one extension of twelve months from the It is unnecessary to consider the power of the state of Oklahoma to treat coals dug from mines operated by the appellant as other personalty, and to subject them to a uniform ad valorem tax, for it seems to us clear that the act of 1908 provided for no such imposition. Its very language imposes a "gross revenue tax which shall be in addition to the taxes levied and collected upon an ad valorem basis." We cannot, therefore, conclude that the gross receipts were intended merely to represent the measure of the value of property liable to a gen-filing of an affidavit in strict conformity eral assessment-provision is made for determining that upon a different basis. Meyer v. Wells, F. & Co. 223 U. S. 298, 301, 56 L. ed. 445, 447, 32 Sup. Ct. Rep. 218. The requirement is not on account of property owned on a given day, as is the general custom where ad valorem taxes are provided for, and as the Oklahoma laws require; but the manifest purpose is to reach all sales and secure a certain percentage thereof,—a method commonly pursued in respect of license and occupation taxes. Pullman Co. v. Knott (decided at the pres with the prescribed requirements. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 219; Dec. Dig. § 135.*] EXECUTION (§ 110*)-LIEN-LEVY-DELIV ERY FOR SERVICE. 3. Judgment executions create a lien upon the property of the judgment debtor when they are delivered to the sheriff for "service," under Hurd's (Ill.) Rev. Stat. chap. 77, § 9, providing that no execution shall bind the goods and chattels of the person against whom it is issued until it is delivered to the sheriff or other proper officer to be executed, since, there being no instructions to the contrary, delivery for *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes "service" must be deemed to be delivery, The trustee in bankruptcy objected upon the ground that the deed could not prevail [Ed. Note-For other cases, see Execution, over the execution creditors because the Cent. Dig. 213-215; Dec. Dig. 110.] "to be executed." [No. 69.] Illinois statute limited its effect to three years, subject only to a single extension of twelve months, and even if another were Argued and submitted November 9, 1914. possible, the second affidavit for extension Decided November 30, 1914. A PPEAL from the United States Circuit Court of Appeals for the Seventh Circuit to review a decree which affirmed a decree of the District Court for the Northern District of Illinois, Eastern Division, approving the action of the referee in bank ruptcy in refusing to allow a preference in favor of mortgage bonds over judgment creditors. Affirmed. See same case below, 119 C. C. A. 420, 201 Fed. 82. The facts are stated in the opinion. filed October 6, 1909, was one day too late, and therefore unavailing. The referee sustained the objection and entered an order refusing to allow a preference in favor of the bonds. The district court approved this action, and its decree was affirmed by the circuit court of appeals (119 C. C. A. 420, 201 Fed. 82). Thereupon an appeal was taken to this court. Three assignments of error are relied upon: (1) The order of the referee, undertaking to subrogate the trustee to the judgment creditors' liens, was erroneous and ought not to have been approved. (2) The trust deed of October 7, 1905, constituted a valid first lien upon all the property specified therein when the bankruptcy proceedings were begun. the were begun. (3) The executions issued upon judgments of June 3, 1910, created no liens upon the bankrupt's property. Mr. Justice McReynolds delivered the opinion of the court: Bonds amounting to $20,000 were issued to Fallows, trustee, by the Tengwall Com pany, October 7, 1905, payable fifteen years thereafter. To secure them a trust deed or mortgage covering all its personal property was executed and duly recorded in Cook county, Illinois, November 1, 1905; an affidavit for the extension of this was filed October 5, 1908; and a second one October 6, 1909. On June 3, 1910, it gave promissory notes to sundry creditors, aggregating more than $25,000; the same day the holders took judgments thereon by confession in the superior court of Cook county: executions were taken out at once and delivered to the sheriff for service, but no levy was ever made. Section 67f of the bankruptcy act, approved July 1, 1898 (30 Stat. at L. 544, 565, chap. 541, U. S. Comp. Stat. 1901, pp. 3418, 3450), is copied in the margin. 1 Its purposes have been pointed out in First Nat. Bank v. Staake, 202 U. S. 141, 50 L. ed. 967, 26 Sup. Ct. Rep. 580, and Rock Island Plow Co. v. Reardon, 222 U. S. 354, 56 L. ed. 231, 32 Sup. Ct. Rep. 164. The propriety of subrogating the trustee to whatever liens were acquired under the judgments has been sustained by the three 1 "That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, June 4, 1910, a petition in involuntary at any time within four months prior to the bankruptcy was filed against the company him, shall be deemed null and void in case filing of a petition in bankruptcy against a receiver, immediately appointed. took, he is adjudged a bankrupt, and the property possession of its property; and an adjudica-affected by the levy, judgment, attachment, tion of bankruptcy followed. Jume 17th. or other lien shall be deemed wholly disThe Continental & Commercial Trust & Savings Bank was duly selected as trustee August 9th, and shortly thereafter present ed a petition asking that the lien created by the executions upon the judgments of June 3d be preserved, and that it be sub rogated thereto for the benefit of the estate. (Bankruptcy act, § 67c.) The referee held appellant's answer resisting this petition insufficient, and allowed the subrogation as prayed. The appellant sought to have all the bonds issued to him allowed as a preferred debt, claiming that they were secured by the above-mentioned trust deed, the lien of which was good as against all the world. charged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on due notice, order that the right under such levy, judgment, attachment, or of the estate; and thereupon the same may other lien shall be preserved for the benefit pass to and shall be preserved by the trustee for the benefit of the estate as aforesaid. And the court may order such conveyance as shall be necessary to carry the purposes of this section into effect: Provided, That nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien, of a bona fide purchaser for value who shall have acquired the same without notice or reasonable cause for inquiry." For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes tribunals below. There is no proof showing | lently obtained. The referee found the exe an abuse of the discretion necessarily vested in them, and we accept their action in that regard as correct. The validity and priority of the liens in question depend on the laws of the state, and § 9, chapter 77, and §§ 1 and 4, chapter 95, of Hurd's Revised Statutes of Illinois, are pertinent. They are copied in the margin. 2 The provisions relative to the continuation of a mortgage after three years have not been definitely and authoritatively construed by the courts of Illinois. The circuit court of appeals concluded that under them a mortgage lien expires as to judgment creditors three years after recordation, subject to one extension of twelve months from the filing of an affidavit in strict conformity with the prescribed requirements. This conclusion harmonizes with the purpose and history of the statute, and we think is correct. The lien claimed by appellant, as against judgment creditors, therefore, did not continue after the 5th day of October, 1909, and the attempt fur ther to extend it was ineffective. Cook v. Thayer, 11 Ill. 617; Porter v. Dement, 35 Ill. 478, 480; Silvis v. Aultman, 141 Ill. 632, 31 N. E. 11; Re New York Economical Printing Co. 49 C. C. A. 133, 110 Fed. 514; Jones, Chat. Mortg. 5th ed. p. 287. There is no adequate proof that the judgments against the bankrupt were fraudu 2" 9. No execution shall bind the goods and chattels of the person against whom it is issued, until it is delivered to the sheriff or other proper officer to be executed; and for the better manifestation of the time, the sheriff or other officer shall, on receipt of such writ, indorse upon the back thereof the day of the month and year and hour when he received the same." "§ 1. That no mortgage, trust deed, or other conveyance of personal property having the effect of a mortgage or lien upon such property shall be valid as against the rights and interests of any third person, unless possession thereof shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor, and the instrument is acknowledged and recorded as hereinafter directed; and every such instrument shall, for the purposes of this act, be deemed a chattel mortgage." "§ 4. Such mortgage, trust deed, or other conveyance of personal property acknowledged as provided in this act shall be admitted to record by the recorder of the county in which the mortgagor shall reside at the time when the instrument is executed and recorded, or, in case the mortgagor is not a resident of this state, then in the county where the property is situated and kept, and shall thereupon, if bona fide, be good and valid from the time it is filed for record until the maturity of the entire debt cutions were delivered to the sheriff for service; and appellant maintains this conclusively shows they were not "delivered to the sheriff or other proper officer to be executed," as required by statute,-that "service" does not include "levy." The record discloses no instruction to the officer to refrain from carrying out the mandate of the writs, nor are there facts which clearly indicate a conditional delivery. The circuit court of appeals decided that, under the circumstances of the present case, the word "service" must be taken to include levy, saying: "In Peck v. City Nat. Bank, 51 Mich. 353, 47 Am. Rep. 577, 16 N. W. 681, it is said: 'Service of an execution includes every act and proceeding necessary to be taken by the sheriff to make the money, and includes the sale of the property when necessary.' The word has been defined to mean 'execution of process.' 35 Cyc. 1432. This construction seems to us reasonable in the case before us. It would be placing a strained meaning upon the transaction to hold that when a party places an execution in the hands of a process officer, the latter is not charged with the duty, without further instructions, to proceed to make the money called for by the writ, which itself commands him to do so. In the absence of directions not to levy, it is or obligation, or extension thereof made so hereinafter specified: Provided, such time shall not exceed three years from the filing of the mortgage unless within thirty days next preceding the expiration of such three years, or if the debt or obligation matures within such three years, then, within thirty days next preceding the maturity of said debt or obligation, the mortgagor and mortgagee, his or their agent or attorney, shall file for record in the office of the recorder of deeds of the county where the original mortgage is recorded, also with the justice of the peace, or his successor, upon whose docket the same was entered, an affidavit setting forth particularly the interest which the mortgagee has by virtue of such mortgage in the property therein mentioned, and if such mortgage is for the payment of money, the amount remaining unpaid thereon, and the time when the same will become due by extension or otherwise; which affidavit shall be recorded by such recorder and be entered upon the docket of said justice of the peace, and thereupon the mortgage lien originally acquired shall be continued and extended for and during the term of one year from the filing of such affidavit, or until the maturity of the indebtedness or extension thereof secured by said mortgage: Provided, such time shall not exceed one year from the date of filing such affidavit." |