Opinion of the Court.

appellate boards of assessors, in passing upon matters of mere valuation, appraisement or proportionate distribution of expense, belong to a different class of governmental functions, executive and administrative in their character, and not appertaining to the judicial department. If an illegal principle of valuation be adopted, or an unconstitutional assessment or tax be made or imposed, or fraud be practised, it may be examined by one of the judicial methods referred to, and thus become the subject of a suit.

The question what is a "suit" in the sense of the judiciary laws of the United States has been frequently considered by this court. Reference may be made particularly to the following cases: Weston v. City of Charleston, 2 Pet. 449, 464; Kendall v. United States, 12 Pet. 524; Holmes v. Jennison, 14 Pet. 540, 566; Ex parte Milligan, 4 Wall. 2, 112; Kohl v. United States, 91 U. S. 367, 375; Gaines v. Fuentes, 92 U. S. 10, 21, 22; Boom Company v. Patterson, 98 U. S. 403, 406; Ellis v. Davis, 109 U. S. 485, 497; Hess v. Reynolds, 113 U. S. 73, 78; Pacific Railroad Removal Cases, 115 U. S. 1, 18; Searl v. School District, 124 U. S. 197, 199; Delaware County v. Diebold Safe Co., 133 U. S. 473, 486, 487.

In the four cases first cited this court determined that writs of prohibition, mandamus and habeas corpus, prosecuted for the attainment of the parties' rights, are suits within the meaning of the law, the judgments upon which, in proper cases, may be removed into this court by writ of error. In Weston v. City of Charleston Chief Justice Marshall said: "Is a writ of prohibition a suit? The term is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought is a suit." This definition is quoted with approbation by Chief Justice Taney in Holmes v. Jennison, which was a case of habeas corpus, and by other judges in subsequent cases.

Boom Company v. Patterson, Pacific Railroad Removal

Opinion of the Court.

Cases, and Searl v. School District were cases of the assessment of the value of lands condemned for public use under the power of eminent domain. The general rule with regard to cases of this sort is, that the initial proceeding of appraisement by commissioners is an administrative proceeding, and not a suit; but that if an appeal is taken to a court, and a litigation is there instituted between parties, then it becomes a suit within the meaning of this act of Congress. In Boom Company v. Patterson the company was authorized by the state laws of Minnesota to take land for the purpose of its business, and to have commissioners appointed to appraise its value. If their award was not satisfactory, either to the company or to the owner of the land, an appeal lay to the district court, where it was to be entered by the clerk "as a case upon the docket," the land owner being designated as plaintiff and the company as defendant. The court was then required to proceed to hear and determine the case in the same manner that other cases were heard and determined. Issues of fact were to be tried by a jury, unless a jury was waived. The value of the land being assessed by the jury or the court, as the case might be, the amount of the assessment was to be entered as a judgment against the company, subject to review by the supreme court of the state on writ of error. This mode of proceeding was followed. The Boom Company and the land owner both appealed from the award of the commissioners. When the case was brought before the District Court, the owner, being a citizen of another state, applied for and obtained its removal to the Circuit Court of the United States, where it was tried before a jury and a judgment was rendered upon their award. We held that the appeal in that case was a suit within the meaning of the act of Congress authorizing the removal of causes from the state to the federal courts. Mr. Justice Field, speaking for the court, said: "The proceeding in the present case before the commissioners appointed to appraise the land was in the nature of an inquest to ascertain its value, and not a suit at law in the ordinary sense of those terms. But when it was transferred to the District Court by appeal from the award of the commissioners, it took, under the statute of the

Opinion of the Court.

state, the form of a suit at law, and was thenceforth subject to its ordinary rules and incidents."

In Delaware County v. Diebold Safe Co. it was held that where a claim against a county is heard before county commissioners, though the proceedings are, in some respects, assimilated to proceedings before a court, yet they are not in the nature of a trial inter partes, but are merely the allowance or disallowance, by county officers, of a claim against the county, upon their own knowledge, or upon any proof that may be presented to them; but that an appeal from their decision, tried and determined by the Circuit Court of the county, is a suit removable to the Circuit Court of the United States.

In Kohl v. United States the whole proceeding for condemnation of land as a site for a post-office was held to be a suit. Mr. Justice Strong, delivering the opinion of the court, said: "It is difficult to see why a proceeding to take land in virtue of the government's eminent domain, and determining the compensation to be made for it, is not, within the meaning of the statute, a suit at common law, when initiated in a court." This view of the proceeding as a whole, instituted and concluded in a court, and analogous to the proceeding of ad quod damnum at common law, perhaps, distinguished this case from the other cases before referred to.

Two of the other cases cited, Gaines v. Fuentes and Ellis v. Davis, arose out of proceedings to set aside the probate of wills; and although the granting of probate of a will is not ordinarily a suit, yet, if a contestation arises, and is carried on between parties litigating with each other, the proceeding then becomes a suit. As observed by Mr. Justice Matthews, speaking for the court in Ellis v. Davis, "Jurisdiction as to wills, and their probate as such, is neither included in, nor excepted out of, the grant of judicial power to the courts of the United States. So far as it is ex parte and merely administrative, it is not conferred, and it cannot be exercised by them at all until, in a case at law or in equity, its exercise becomes necessary to settle a controversy of which a court of the United States may take cognizance by reason of the citizenship of the parties." Similar views were expressed by Mr. Justice Miller in Hess V.

Opinion of the Court.

Reynolds, which was the case of a creditor instituting proceedings in a probate court against the estate of his deceased debtor, and then removing them into the Circuit Court of the United States..

The principle to be deduced from these cases is, that a proceeding, not in a court of justice, but carried on by executive officers in the exercise of their proper functions, as in the valuation of property for the just distribution of taxes or assessments, is purely administrative in its character, and cannot, in any just sense, be called a suit; and that an appeal in such a case, to a board of assessors or commissioners having no judicial powers, and only authorized to determine questions of quantity, proportion and value, is not a suit; but that such an appeal may become a suit, if made to a court or tribunal having power to determine questions of law and fact, either with or without a jury, and there are parties litigant to contest the case on the one side and the other.

present case, it We have seen

Applying this principle to the facts of the does not seem difficult to come to a decision. that, although the appeal from the assessment was made to the "county court" eo nomine, yet that this is not a judicial body, invested with judicial functions, except in matters of probate; but is the executive or administrative board of the county, charged with the management of its financial and executive affairs. According to the principles laid down by the state court, the acts of this board, in matters of taxation, are as purely administrative as are those of the county assessors in making the original assessment. Although we are not concluded by this decision, it is so much in harmony with our own decisions on the same subject that we accept it as correct.

According to these views the proceeding below was not properly removable to the circuit court of the United States, and ought to have been remanded to the state court. The decree of the circuit court is

Reversed and the cause remanded with instructions to remand the same to the state court from which it was removed.

Opinion of the Court.

FREIBURG v. DREYFUS.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

No. 228. Argued March 24, 25, 1890.- Decided April 14, 1890.

D., a resident at New Orleans, being at the time insolvent, transferred to M. certain goods in a warehouse as a dation en paiement. M. pledged these goods to E. to secure $15,000, of which $5000 was loaned in cash, and $10,000 in two notes for $5000 each, which notes were executed in all respects in the manner required by the Civil Code of Louisiana, §§ 3157, 3158, in order to secure a privilege and preference under those sections. A creditor of D. commenced an action at law against him and caused these goods to be sequestered, and subsequently filed a bill in equity to set aside the whole transaction as fraudulent. Pending the proceedings the two notes matured and were paid by E.; Held,

(1) That these instruments were sufficient under the laws of Louisiana; (2) That they were not simulated, but that the transaction was bona fide.

THE case is stated in the opinion.

Mr. D. C. Labatt for appellant.

Mr. R. H. Browne (with whom was Mr. C. B. Singleton on the brief) for appellees.

MR. JUSTICE BREWER delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court for the Eastern District of Louisiana. Weiler v. Dreyfus, 26 Fed. Rep. 824. The facts are these: On October 30, 1883, appellants, creditors of Joseph Dreyfus, commenced an action at law against their debtor, to recover the sum of $19,000; and sequestered certain goods in the warehouse of Meyer, Weill & Co. These goods had been transferred by Dreyfus to Lehman Meyer, on October 27, as a "dation en paiement." On November 6, Abraham Ermann, one of the appellees filed in said suit what is known under the Louisiana Code of Practice as a petition of intervention and third opposition, wherein he