Concurring Opinion: Field, J. In Smelting Co. v. Kemp, the court treated at large of the conclusive presumptions attending a patent of the United States for lands, but added, that in thus speaking of them it assumed "that the patent was issued in a case where the Department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the Department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the Department would, in that event, be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law. In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act." The attempt is futile to use these cases, or any other case, to establish the proposition that if an error can be shown in the action of an officer of the Land Department in a matter subject to its jurisdiction the proceeding of the officer may be treated as a nullity and the patent issued thereon be collaterally assailed. This view is untenable, and does not merit serious consideration. If it could be sustained it would be subversive of all security in the judgments of ordinary tribunals, as well as in those of special tribunals like the Land Department. Nor is there any pertinency in the observations as to the reservation from grant of the seashore under the law of the former government. No claim was ever made in the Pueblo Case for any part of the seashore. Those terms apply in this country only to land covered and uncovered by the daily tides. They cannot possibly have any application to the banks of creeks or to land under their waters. The rule of the civil law of Europe that lands covered and uncovered by the tides at their highest flood during the year constitute the shore of the sea has never Concurring Opinion: Field, J. been applied to that portion of this country ceded to the United States by Mexico. The claim of the pueblo was for land above the ordinary high-water mark of the bay, not for any land covered and uncovered by the tides, either daily or when they reach their highest point during the year. As said in San Francisco v. Le Roy, 138 U. S. 656, 671, "The lands which passed to the State upon her admission to the Union were not those which were affected occasionally by the tide, but only those over which tide water flowed so continuously as to prevent their use and occupation. To render lands tide lands, which the State, by virtue of her sovereignty, could claim, there must have been such continuity of the flow of tide water over them, or such regularity of the flow within every twentyfour hours as to render them unfit for cultivation, the growth of grasses or other uses to which upland is applied." The reasons given by the court below on the second affirmance of the judgment of the referee are marked by the objections stated to its former opinion. The true doctrine as to the effect of patents in actions at law is stated in a decision of the court below in De Guyer v. Banning — rendered whilst this case has been pending here, in which that court, following a long line of previous adjudications, unbroken except by this case, declares that upon a confirmation of a Mexican grant the patent issued by the United States to the claimant is the only evidence of the extent of the grant, and that if there is a conflict as to its location and extent between it and the decree of confirmation, the patent must control. It is the only doctrine which will insure peace and tranquillity to parties holding under patents issued upon confirmed Mexican grants. Any other doctrine would introduce endless confusion and perplexity as to all such titles. If there be, in fact, any material conflict between the boundaries given in the decree of confirmation and those described in the official survey, the only remedy is to be sought by direct proceedings instituted by the government, or by its authority. Until the alleged conflict is thus determined and adjusted, the patent must control. From the views expressed I am clearly of opinion that the Supreme Court of the State erred in affirming the judgment Concurring Opinion: Field, J. of the Superior Court entered upon the report of the referee; it should have reversed that judgment and ordered judgment for the defendant. This conclusion is, I think, established beyond all controversy in the opinion of the court. But it is unnecessary to pursue this case further. I have treated it at much length because the title of the city has been a subject of consideration in one form or another for now over thirty-nine years, and the questions presented have been discussed by counsel with marked ability and learning. The claim was originally presented to the board of commissioners in 1852, and it was decided by that board in 1854. It was then appealed to the District Court of the United States, and there remained unacted upon for over eight years. An act of Congress then authorized it to be transferred to the Circuit Court of the United States, to which court it subsequently passed in September, 1864. In October following a decree of confirmation was entered, which was modified May 18, 1865, and then entered in its final form. An appeal from that decree was taken to the Supreme Court of the United States, and was dismissed by that court in December, 1866, on motion of the attorney general upon stipulation of parties. A survey was made of the confirmed claim in 1868, and that survey, being appealed from, remained unacted upon before the Commissioner of the General Land Office for over nine years. After it was acted upon by him an appeal was taken from his decision to the Secretary of the Interior, and it was before one secretary after another for five years, so that the patent was not issued until 1884. Even then the opposition to the just claim of the city and of parties holding under the city did not cease, but has been continued in one form or other ever since. It is to be hoped that all annoyances and litigation from such opposition will now be ended. THE CHIEF JUSTICE, MR. JUSTICE BRADLEY and MR. JUSTICE GRAY did not hear the argument or participate in the decision of this case. Statement of the Case. MAINE v. GRAND TRUNK RAILWAY COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MAINE. No. 29. Submitted April 14, 1891.- Decided December 14, 1891. A state statute which requires every corporation, person or association operating a railroad within the State to pay an annual tax for the privilege of exercising its franchises therein, to be determined by the amount of its gross transportation receipts, and further provides that, when applied to a railroad lying partly within and partly without the State, or to one operated as a part of a line or system extending beyond the State, the tax shall be equal to the proportion of the gross receipts in the State, to be ascertained in the manner provided by the statute, does not conflict with the Constitution of the United States; and the tax thereby imposed upon a foreign corporation, operating a line of railway, partly within and partly without the State, is one within the power of the State to levy. THE Court stated the case as follows: The defendant is a corporation created under the laws of Canada, and has its principal place of business at Montreal, in that Province. Its railroad in Maine was constructed by the Atlantic and St. Lawrence Railroad Company, under a charter from that State, which authorized it to construct and operate a railroad from the city of Portland to the boundary line of the State; and, with the permission of New Hampshire and Vermont, it constructed a railroad from that city to Island Pond in Vermont, a distance of 1494 miles, of which 824 miles are within the State of Maine. In March, 1853, that company leased its rights and privileges to the defendant, The Grand Trunk Railway Company, which had obtained legislative permission to take the same; and since then it has operated that road and used its franchises. A statute of Maine,1 passed in 1881, enacted that every 1 AN ACT RELATING TO THE TAXATION OF RAILROADS. Be it enacted by the Senate and House of Representatives in the Legislature, assembled, as follows: SECT. 1. The buildings of every railroad corporation or association whether within or without the located right of way, and its lands and Statement of the Case. corporation, person or association, operating a railroad in the State, should pay to the state treasurer, for the use of the fixtures outside of its located right of way, shall be subject to taxation by the several cities and towns in which such buildings, land and fixtures may be situated, as other property is taxed therein. SECT. 2. Every corporation, person or association, operating any railroad in this State, shall pay to the state treasurer, for the use of the State, an annual excise tax, for the privilege of exercising its franchises in this State, which, with the tax provided for in section one, shall be in lieu of all taxes upon such railroad, its property and stock. There shall be apportioned and paid by the State from the taxes received under the provisions of this act, to the several cities and towns, in which, on the first day of April in each year, is held railroad stock hereby exempted from other taxation, an amount equal to one per centum on the value of such stock on that day, as determined by the governor and council; provided, however, that the total amount thus apportioned on account of any railroad shall not exceed the sum received by the State as tax on account of such railroad. SECT. 3. The amount of such tax shall be ascertained as follows: The amount of the gross transportation receipts as returned to the railroad commissioners for the year ending on the thirtieth day of September next preceding the levying of such tax, shall be divided by the number of miles of railroad operated to ascertain the average gross receipts per mile; when such average receipts per mile shall not exceed twenty-two hundred and fifty dollars, the.tax shall be equal to one-quarter of one per centum of the gross transportation receipts; when the average receipts per mile exceed twenty-two hundred and fifty dollars and do not exceed three thousand dollars, the tax shall be equal to one-half of one per centum of the gross receipts; and so on increasing the rate of the tax one-quarter of one per centum for each additional seven hundred and fifty dollars of average gross receipts per mile or fractional part thereof, provided, the rate shall in no event exceed three and one-quarter per centum. When a railroad lies partly within and partly without this State, or is operated as a part of a line or system extending beyond this State, the tax shall be equal to the same proportion of the gross receipts in this State, as herein provided, and its amount determined as follows: the gross transportation receipts of such railroad, line or system, as the case may be, over its whole extent, within and without the State, shall be divided by the total number of miles operated to obtain the average gross receipts per mile, and the gross receipts in this State shall be taken to be the average gross receipts per mile, multiplied by the number of miles operated within this State. SECT. 4. The governor and council, on or before the first day of April in each year, shall determine the amount of such tax, and report the same to the state treasurer, who shall forthwith give notice thereof to the corporation, person or association, upon which the tax is levied. SECT. 5. Said tax shall be due and payable, one-half thereof on the first |