UNITED STATES TRUST CO. v. MERCANTILE TRUST CO. et al., 88 F. 140

MORROW, Circuit Judge, after stating the case as above, delivered the following opinion: The ultimate question presented for determination on this appeal is whether or not the claim of the intervener and appellee, the Southern Pacific Railroad Company, against the Atlantic & Pacific Railroad Company, an insolvent corporation, for a just proportion of the taxes paid by the Southern Pacific Railroad Company for the-fiscal year 1887-1888, under its agreement of August 20, 1884, with the Atlantic & Pacific Railroad Company, should be paid by the receiver of the Atlantic & Pacific Railroad Company in preference to the mortgage lien of the United States Trust Company, the appellant.

The determination of this question depends upon the consideration of three leading propositions, to wit:

(1) Is the Atlantic & Pacific Railroad Company liable to the Southern Pacific Railroad Company, under the conditions of the agreement of August 20,1884, for its just proportion of taxes for the fiscal year 1887-1888?

(2) If so liable, does such a claim for taxes constitute a preferential claim to that of the mortgage lien?

(3) If it does, in what amount should such taxes be allowed, and should a just proportion of the sum paid by the Southern Pacific Railroad Company for attorney’s fees, costs of suit, interest, etc., incurred in litigating and contesting the taxes for the fiscal year 1887-1888, be also allowed and reimbursed to the latter company by the receiver of the Atlantic & Pacific Railroad Company? Before entering into a consideration of these propositions, there is a preliminary question to be disposed of, and that is as to the effect to be given to the findings of fact of the special master.

It is contended, at the outset, by the counsel for the appellant, that this court and the court below are bound by the findings of fact made by the special master.

It will be observed that the reference, by the court below, to the special master, of the claim for taxes made by the intervener, the Southern Pacific Railroad Company, was not that of an ordinary reference to take and report testimony, but it was stipulated and agreed between counsel-representing all the parties that the special master should “take the proofs of the respective parties, and report the same to the court, with his findings of fact and conclusions of law thereon.” The effect of this stipulation was undoubtedly to constitute, to a certain extent, the special master as the judge of the facts presented to him.

The scope and effect of such a stipulation is tersely stated by Mr. Justice Brown, delivering the opinion of the United States supreme court in Davis v. Schwartz, 155 U. S. 631, 636, 15 Sup.

Ct. 237, 239, in the following language: “As the case was referred by the court to a master to report, not the evidence merely, but the facts of the case, and his conclusions of law thereon, we think that his findings, so far as it involves questions of fact, is attended by a presumption of correctness similar to that in the case of a finding by a referee, the special verdict of a jury, the findings of a circuit court in a case tried by the court under Rev. St. § 649, or in an admiralty cause appealed to this court.

In neither of these cases is the finding absolutely conclusive, as if there be no testimony tending to support it; but, so far as it depends upon conflicting testimony, or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must he treated as unassailable,’' — citing Wiscart v. D’Auchy, 3 Dall. 321; Bond v. Brown, 12 How. 254; Graham v. Bayne, 18 How. 60, 62; Norris v. Jackson, 9 Wall. 125; Insurance Co. v. Folsom, 18 Wall. 237, 249; The Abbotsford, 98 U. S. 440. See, further, Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355; Crawford v. Neal, 144 U.

S. 585, 596, 12 Sup. Ct. 759; Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821. So far, therefore, as the findings of fact by the special master, under the stipulation referred to, are based upon conflicting evidence, or upon the veracity of witnesses, or so far as there is evidence consistent with the finding, they are conclusive and binding upon the court. But, in so far as other and additional evidence is introduced before the court, the rule is inapplicable.

In this case it appears that after the special master had reported, and filed his findings of fact and conclusions of law, it became necessary to introduce further evidence. To obviate a re-reference, the parties entered into a stipulation consenting to the introduction of certain documentary evidence, referred to above in the statement of the case, and stipulated further that none of the parties in this case were parties to the proceedings in which the attempted disaffirmance took place, nor had any notice thereof.

The effect of this stipulation and of the introduction of the documentary evidence referred to was to render the rule inapplicable so far as the evidence may be deemed material and relevant to any of the findings of fact by the special master. Furthermore, the rule is confined strictly to questions of fact. It does not include questions of law, nor, generally speaking, the

interpretation and construction of the legal effect of documents. In the case at bar the special master interpreted the agreement of August 20, 1884, to be a lease, and made findings of fact to that effect. Upon exceptions taken to these findings, the court below interpreted the agreement as a contract of sale, thereby overruling the special master. It is plain that the findings of fact of the special master as to the legal effect of the instrument in question were no more binding upon the court below than is the

interpretation placed by the court below on the same instrument conclusive on this court upon the present appeal. In this view it follows that findings of fact (Ríos. 1 and 3) of the special master, in which he found that the agreement of August 20, 1884, was a lease, were not binding on the court below, and that that court was correct in exercising its own independent judgment as to the

interpretation to be given the agreement. In so doing the learned judge held that the agreement was a contract of sale, and that the lease features of the agreement were merely incidental; but in arriving at this conclusion we think he did not give the lease features of the agreement the importance and prominence they deserve, and which the parties intended. The agreement of August 20,' 1884, was of a dual character. It was a contract to sell and a lease.

That it was intended to be, and was, an executory contract of sale, is plainly deduced from the language employed, as appears from the terms set forth in the statement of the case.

The Southern Pacific Railroad Company agreed to sell to the Atlantic & Pacific Railroad Company, and the latter agreed to buy from the former, the line of railway extending from the west end of the bridge over the Colorado river, at or near The Needles, to the easterly margin of the grounds or yards of the Southern Pacific Railroad Company used in connection with the Mojave Junction station, or with the main line of road of the Southern Pacific Railroad Company between Goshen and Yuma, in the state of California, some 242.32 miles in length.

But it affirmatively appears from the agreement itself that the Southern Pacific Railroad Company could not, at that time, owing to the existence of a certain mortgage covering the property in question, transfer a clear title to the road. Nor does the agreement state, in this particular, when it could or would be able to convey a clear title. It therefore simply contracted to transfer a good title when it was able to do so. This part of the agreement is what constitutes it an executory agreement or contract of sale.

Then the agreement further specifically provides that meanwhile, and until the consummation of the sale, and payment of the purchase price of the property, the Southern Pacific Railroad Company would lease and demise to the Atlantic & Pacific Railroad Company, from the 1st day of October, 1884, the said line of railway, together with the appurtenances, in the contract agreed to be sold, at and for the annual rental of $1,800 per mile, — that is to say, $436,266, — payable semiannually during the continuance of the lease.

For the purposes'of the lease, the Atlantic & Pacific Railroad Gompany was put in full possession of the line of railway. It was further distinctly provided that, in the event of any default by the Atlantic & Pacific Railroad Company in its payment of the rental for the lease as agreed, the Southern Pacific Railroad Company should retake possession.

All through the agreement it will be found that there is a clear, distinct and unequivocal intent that the railway should be leased until the consummation of the sale, and full provision is made as to the rights and liabilities of the respective parties with reference to the sale of the property and as to its lease. The distinction between the sale and lease features of the agreement is maintained throughout. The eighth clause, in particular, exemplifies this, for it provides that "the said party of the first

part covenants and agrees to and with the party of the second part that upon the arrival of the time for the consummation of the sale hereinbefore agreed upon it will convey the property sold to the party of the second part by good and sufficient deed with usual covenants of warranty; and that during the term of said lease, the rent reserved being paid and all other terms of said lease being fulfilled, it will warrant and defend the peaceful occupation and enjoyment of the demised premises, and of every part thereof, to the party of the second part against the lawful claims of all persons.” But it is unnecessary to elaborate further on the double nature and purpose of the agreement.

A careful reading of it will demonstrate without doubt that, until the consummation of the sale, the line of railway was to be leased. The distinction between these two features of the agreement is too plain to justify us in holding with the learned judge of the court below that the lease was a mere incident of the contract. There is no good reason why, if parties choose so to contract, they may not agree to lease a property, and, upon the happening of a future act or contingency, mature the lease into a sale.

We conclude, therefore, that the agreement of August 20, 1884, was of the dual character referred to, and !md a twofold purpose; or, in other words, it operated as an execu lory contract of sale, but until the consummation of the sale it was agreed that there should be a lease of the property. This view disposes of the contention of counsel for appellant, earnestly pressed on the court, that, if the agreement be regarded as a contract of sale, it is void, because under the laws of California, as is contended, railroad companies have no power to sell their roads, or any pari thereof.

But, whatever may be the law of California on that question, and assuming, for the purposes of the case, although not deciding, that such is the law7, this would not affect and invalidate the agreement of August 20, 1884, in so far as it operates as a least!. That a contract may be void in part and valid in

part is elementary law. We have seen how studiously the two features of the agreement, viz. that of sale and of lease, were kept: separate and distinct. Assuming, therefore, that the agreement is void as a contract of sale, still it would be valid as a lease. Chicago, St. L. & N. O. R. Co. v. Pullman South. Car Co., 139 U. S. 79, 91, 11 Sup. Ct. 490; Erie Ry. Co. v. Union Locomotive & Express Co., 35 N. J. Law, 240, 246; Treadwell v. Davis, 34 Cal. 601; Lumber Co. v. Hayes, 76 Cal. 387, 393, 18 Pac. 391. That railroad companies have the power to lease their roads, or any part thereof, is expressly provided for by the act of 1880. St. Cal. 1880, p. 21. Under

section 17 of its charter, the Atlantic & Pacific Railroad Conqvany had the “power” to iefise. Act July 27, 1866 (14 Stat. 292). One of the provisions of the agreement, in so far as it was a lease, was that the Atlantic & Pacific Railroad Company should “promptly pay and discharge all taxes and assessments which should thereafter become due upon said property, or any part of it, or which might become in any wise due or owing in respect to the same.” This provision was binding on the lessee so long as the lease endured. When the receivers were appointed, they did not disaffirm the lease.

On the contrary, it was affirmed by their continued use and occupation of the line of railway. Such being the fact, the Atlantic & Pacific Railroad Company was bound to perform its agreements under the lease, and, among others, to pay its just proportion of taxes. In fact, one of the conditions of the receiverships was that all taxes then due should be paid.

This disposes of the first question, viz. whether the Atlantic & Pacific Railroad Company was liable to the Southern Pacific Railroad Company, under the conditions of the agreement of August 20, 1884, for its just proportion of taxes for the fiscal year 1887-1888, and brings us to the second and third propositions involved on this appeal, which will, for the sake of convenience, be considered together.

The second proposition is whether or not such claim for taxes constitutes a preferential claim to that of the mortgage liens; and the third is, if it does constitute a preferential claim, in what amount should it be allowed? With reference to the second proposition, we think there is no room for doubt that this claim for taxes constitutes a preferential claim to that of the mortgage liens. In the first place, it was made a condition of the receivership.

In the order appointing the original receivers, the court below directed them, among other things, to pay "all amounts now due from the defendant (the Atlantic & Pacific Railroad Company) on its roads ór properties constituting part of its system for taxes and assessments upon the property,' or any part thereof.” The subsequent order, appointing the present receiver, contained similar directions.

In the second place, the agreement of August 20, 1884, under which the taxes were due, never having been disaffirmed by the receivers, it follows that it still continued in force, and the Atlantic & Pacific Railroad Company was subject to all the obligations thereunder just as much as it was entitled to all the advantages and benefits thereunder. The-language of the learned judge of the court below, in this connection, is pertinent.

He said: “The evidence in the ease, as well as those findings of the special master not excepted to, show that the receivers not only paid, from time to time, every installment of rental that has become due under the contract of August 20,1884, but also all of the taxes that have become due on the property therein described, except the portion of the taxes for the year 18S7 here in controversy.

And the evidence also shows that several of these installments of rental were paid with money borrowed by the receivers upon receivers’ certificates authorized to be issued for that purpose by this court, upon representations made by the receivers, not only showing the necessity of borrowing because of a lack of funds, but also showing that the line of road forming the subject of the contract of August 20, 1884, is an essential part df the Atlantic & Pacific Company’s railroad system, and constitutes the only western outlet and inlet by rail for traffic moved over that system, and has been in the continuous and exclusive possession, use, and cohtrol of that company, and the receivers-of its property, from the time that company first took possession of the property under the contract in question.

Those representations by the receivers are, in effect, admitted to be true by the various pleadings filed in the-cause by the Mercantile Trust Company and the United States Trust Company, respectively.

If, therefore, it be conceded that the contract of August 20, 1884, ever admitted of disaffirmance by the receivers, it has been affirmed over and over again by them, and it is now too late for either of the parties, to the present suit to here set up any right of election in respect thereto.” It further appears that on January 11, 1895, the former receivers of the Atlantic & Pacific Company paid the sum of $14,902.8(5 on account of the very taxes now in question. The present claim is, therefore, merely for the balance claimed to be due.

We think, on the whole, that the taxes for the fiscal year 1887-1888 were due, although the precise amount thereof may not have been ascertained until the decision of the United States supreme court (1(52 U. S. 1G7, 1(5 Sup.

Ct. 794) in the case involving the liability of the Southern Pacific Railroad Company for the taxes was rendered, and that the orders appointing the receivers were broad enough to include the proportion of taxes due by the Atlantic & Pacific Railroad Company to the Southern Pacific Railroad Company for that year, and that such proportion of taxes is entitled to preference over the mortgage lien. We next inquire as to the proportion of the taxes for 1887-1888 which the Atlantic & Pacific Railroad Company was called upon to reimburse to the Southern Pacific Railroad Company under its agreement of August 20, 1884.

Undoubtedly, the laws of the state of California, under which the taxes were assessed and collected, entered into and became paid of the agreement with respect to the payment, by the Atlantic & Pacific Railroad Company, of the taxes assessed upon the leased line of railway. By the law of the state the taxes are assessed against the owner. The taxes for the fiscal year 1887-3888 were, therefore, assessed against the Southern Pacific Railroad Company, the lessor of , the line of railway involved in the present controversy, and not against the Atlantic & Pacific Railroad Company, the lessee.

The valuation returned by the Southern Pacific Railroad Company on its franchise, roadbed, rails, rolling stock, etc., within the state of California, including the line of railway from The Needles to Mojave, was $9,570,200. This valuation was raised by the state board of equalization to $16,500,000. The Southern Pacific Railroad Company contested this increase, but the tax was upheld by the courts. 38 Pac. 912; 162 U. S. 167, 36 Sup. Ct. 794. No question, therefore, of the validity or legality of the tax can now be indulged in, nor can the amount thereof be inquired into.

The only question with which the court below was concerned, and which is involved on this appeal, is as to the proportionate amount which the Atlantic & Pacific Railroad Company is to repay to the Southern Pacific Railroad Company. The amount of tax imposed on the valuation of $16,500,000 for 1,022.33 miles of railway was $251,134.26, or at the rate of $16,139.60 per mile, which of course, included rolling stock, etc.

The number of miles of railway leased by the Atlantic & Pacific Railroad Company from the Southern Pacific Railroad Company was some 242.37 miles, of which 35.64 miles were in Kern county and 206.87 miles were in San Bernardino county.

As the Atlantic & Pacific Railroad Company did not lease the rolling stock of the Southern Pacific Railroad Company, but only its line of railway in the two counties referred to, a certain percentage was allowed by the Southern Pacific Railroad Company in computing the amount due from the Atlantic & Pacific Railroad Company for the proportion of taxes due from the latter company to the former under their agreement of August 20, 1884.

This percentage for the year 1887-1888 was fixed by the Southern Pacific Railroad Company at 14.50 per cent., which amount has not been questioned in this controversy, and must, therefore, be taken as correct.

Allowing for this percentage for rolling stock, would make the tax per mile the sum of $13,799.36, and the amount due from the Atlantic & Pacific Railroad Company to the Southern Pacific Railroad Company would be as follows: Kern county, 35.04 miles railway at $13,799.30 per mile, $491,809.19 at 32 per $100. $ 9,836 18 San Bernardino county, 200.87 miles railway at $13,799.30 per mile, $2,854,073.00, at $1.33 per $100. 37,967 15 $47,803 33 This total of $47,803.33, according to the rate of taxation fixed by the law of the state of California, through its assessing officers, and confirmed by the tribunals of the state and of the United States supreme court, fixes the amount due from the Atlantic & Pacific Railroad Company as its just proportion of taxes due to the Southern Pacific Railroad Company, and this was the amount paid by the latter company to the state.

The special master, in this connection, found (finding No. 16) that: “The value of the leased property, for the purposes of taxation for the year 1887, considered separately from any franchises or rolling stock (and taking into consideration the fact, which I find to be true, that the cost of operating the leased property has for many years prior and subsequent to the appointment of the receivers herein exceeded its earnings), was $4,000 per mile, or a total of $969,4S0, which is 5.39 per cent, of the entire valuation of the franchises, roadway, roadbed, rails, and rolling stock of the Southern Pacific Railroad Company in California, as fixed by the state board of equalization for that year.” Upon exceptions, this finding was overruled by the court below.

In this, we think, the court was entirely correct. The evidence objected to and admitted, tending to show what the earnings of the Atlantic & Pacific Railroad Company were for the year Í887 and prior thereto, was erroneously admitted, and was irrelevant, and incompetent to fix the tax due by the Atlantic & Pacific Railroad Company to the Southern Pacific Railroad Company for the year 1887-1888. The taxes which were comprehended and contemplated by the agreement of August 20, 1884, were those fixed by law.

The taxes in the present instance are based upon the assessment and apportionment made by the state board of equalization, under the provisions of the constitution and laws of the state of California, and that assessment and apportionment were held( to be valid by the superior court of the city and county of San Francisco, by the supreme court of the state of California, and finally by the supreme court df the United States.

The admission of the evidence tending to show any other basis or rate of taxation was, in effect, a collateral attack upon the assessment and apportionment of the state board of equalization, and also upon the judgment and decision of the courts, which sustained the validity of the assessment. Unsunnort-ed by the evidence which, we hold, has been erroneously admitted, the findings cannot stand. The nineteenth finding of the special muster was to the same effect, was overruled by the court below, and, we think, properly so.

Several other objections are presented by counsel for appellant as to the validity of the tax, but, as we consider them untenable, It is not necessary, in our opinion, to protract this already lengthy opinion, by a detailed consideration of them.

It follows, from the views staled, that the taxes for which the Atlantic & Pacific Railroad Company was liable to repay and reimburse the Southern Pacific Railroad Company under its agreement of August 20, 1884, and the laws of the state of California with reference to the taxation of the line of railway in question, as sustained by the decisions of the courts previously referred to, was the sum of $47,803.83, less any sum which the Atlantic & Pacific Railroad Company may have previously paid on account of these taxes.

It appears that; it ha,d paid to the Southern Pacific Railroad Company the sum of $14,902.86 on a reassessment for the fiscal year 1887-1888. This amount, with certain items of interest credited by the Southern Pacific Railroad Company, would amount to the sum of $17,681.82, which should be deducted from the amount of taxes as stated above, leaving a balance as follows; $47,803.33, amount of taxes for fiscal year 1887-1888; $17,681.82, amount credited; $30,121.51, balance due for taxes.

The next and final questiou is whether the Atlantic & Pacific Railroad Company should reimburse the Southern Pacific Railroad Company for a just proportion of the attorney’s fees, costs of suit, interest, etc., incurred by the latter company in contesting and litigating the taxes for the fiscal year 1887-1888. When the taxes for the year 1887-1888 were assessed by the state board of equalization at the increased valuation of $16,500,000, the Southern Pacific Railroad Company contested the same.

It was, however, unsuccessful in the litigation, and, in addition to having to pay the full amount of the tax imposed, amounting, as stated, to $251,134.26, incurred certain additional expenditures, such as accrued penalties, costs of suit, attorney’s fees, interest, etc. In the bill presented by it to the Atlantic & Pacific Railroad Company, it sought to charge that company with a certain proportion of these additional costs.

The proportion charged was fixed at 19.08 per cent, that being the percentage which the sum of $47,803.33, the amount of taxes charged to the Atlantic & Pacific Railroad Company, bore to the total tax of $251,143.26, charged as taxes against the Southern Pacific Railroad Company.

The special master found that the Atlantic & Pacific Railroad Company was not called upon to reimburse the Southern Pacific Railroad Company for its expenses incurred in that behalf, as he found the fact to he that the “action of the intervener, the Southern Pacific Railroad Company, in refusing to pay said taxes levied and assessed for the fiscal year of 1887, ending June 30, 1888, and in defending the said suit of the state of California therefor, was wholly voluntary upon its part, and was in no manner induced or caused by any request, consent, or advice upon the part of the defendant the Atlantic & Pacific Railroad Company, represented by W.

C.

Hazeldiee, its general attorney, or other attorney, officer, or agent baring authority in the premises, or upon the part of the present or former receivers herein, or of any attorney or representative of such receivers.” The court below, in passing upon the exception taken to this finding, sustained the exception, and held that the Atlantic & Pacific Railroad Company was liable for a proportionate share of the penalty, costs, attorney’s fees, interest, etc., incident to the litigation, and fixed such proportion at 19.03 per cent, as charged in the bill presented by the Southern Pacific Railroad Company to the Atlantic & Pacific Railroad Company.

The learned judge based this determination on the ground that the evidence tended to show that Mr. Hazeldine, as solicitor for the Atlantic & Pacific Railroad Company, had authority to act as such solicitor for the company in respect to the matter of these taxes, and that he, as such solicitor, consulted with 'the legal representatives of the Southern Pacific Railroad Company in connection with the very taxes in question, and acquiesced in and consented to the contest made by the Southern Pacific Railroad Company against the taxes in question. In this, we think, the learned judge was correct.

Had the Atlantic & Pacific Railroad Company desired to avoid the additional penalty, attorney’s fees, interest, and costs incurred by a failure to pay the taxes when due and when contested, it could have offered its part of the taxes, and thereby absolved itself from any liability in that direction. ' From the foregoing opinion it follows that the claim of the Southern Pacific Railroad Company for taxes for the fiscal year 1887-1888 should be allowed and paid by the receiver, amounting, after crediting certain sums previously stated, to the balance of $30,121.51, and that that part of the claim which relates to the proportion claimed for interest, costs of suit, attorney’s fees, etc., be allowed as charged in the bill.

The judgment and decree of the circuit court will be affirmed.