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The principle governing these decisions, so plain that it needs no reasoning to support it, is that those who seek and obtain the benefit of a charter of incorporation must take the benefit under the conditions and with the burdens prescribed by the laws then in force, whether written in the Constitution, in general laws, or in the charter itself. The Rochester Railroad, therefore, having accepted its charter under a law which imposed upon it the duty of laying pavements, is bound to perform that duty, even in respect of tracks which, while owned by a predecessor in title, would have been exempt

Brighton Railroad did not accompany the transfer of its property to the Rochester Railroad is reached by another and entirely independent course of reasoning, based upon a consideration of the law under which the Rochester Railroad was incorporated. That was the general incorporation law of 1884. Every corporation incorporated under it was made "subject to all the liabilities imposed by the act" (§ 1), and directed to keep the street surface about and between its tracks "in permanent repair" (§ 9), which, as held by the state court, includes the duty of laying such pavement as is in controversy here. We follow the construction by that court of § 9 so far as it holds that that The foregoing considerations would be section applies to all tracks, whether con- conclusive of the case were it not that the structed under this law or any other law, plaintiff in error takes another position, owned and operated by a corporation in which, if tenable, would avoid the result corporated under it. Whether the section reached by either course of reasoning. It applies, or constitutionally can apply, to a is insisted that this is not a case of transcorporation not deriving its powers from fer of an exemption; that the rules governthe act of 1884, in respect of tracks not con- ing transfer are not applicable here; that structed under its provisions, it is not the Brighton Railroad has not ceased to necessary for us to consider. There may exist as a corporation; that it has been have been a saving of the rights of such merely joined by merger with the Rochester corporations under § 18. That question | Railroad, which controls it by stock holdings, would be presented if the Brighton Rail- and operates it by virtue of its franchises; road, instead of a successor in title, were and that, therefore, the Rochester Railroad . claiming an exemption. Here a corporation may claim and enjoy the exemption of the deriving its right to exist under the act of Brighton Railroad in its behalf in respect of 1884 is asserting an exemption from a duty its property. In support of this view imposed upon it by the law which created counsel cite Tomlinson v. Branch, 15 Wall. it. The authorities are numerous and con- 460, 21 L. ed. 189; Central R. & Bkg. Co. v. clusive that no corporation can receive, by Georgia, 92 U. S. 665, 23 L. ed. 757; Tennes. transfer from another, an exemption from see v. Whitworth, ubi supra. These cases taxation or governmental regulation which hold that where corporations are united in is inconsistent with its own charter or with such manner that one continues to exist as the Constitution or laws of the state then a corporation, owning and operating its applicable; and this is true, even though, property, by virtue of its own charter, the under legislative authority, the exemption corporation thus continuing to exist still is transferred by words which clearly in- holds its immunities and exemptions in reclude it. Trask v. Maguire, 18 Wall. 391, spect of the property to which they apply. 21 L. ed. 938; Shields v. Ohio, 95 U. S. 319, But the cases have no application here. It 24 L. ed. 357; Maine C. R. Co. v. Maine, 96 may well be that a proceeding for condemU. S. 499, 24 L. ed. 836; Atlantic & G. R. Co. nation of property, begun by the Brighton v. Georgia, 98 U. S. 359, 25 L. ed. 185; Railroad, would not abate by reason of its Louisville & N. R. Co. v. Palmes, 109 U. S. consolidation with the Rochester Railroad, 244, 27 L. ed. 922, 3 Sup. Ct. Rep. 193; as held in [Re New York Elev. R. Co.] 43 N. Memphis & L. R. R. Co. v. Railroad Comrs. Y. S. R. 651, 17 N. Y. Supp. 778, Affirmed in (Memphis & L. R. R. Co. v. Berry) 112 U. 133 N. Y. 690, 31 N. E. 627. An examinaS. 609, 28 L. ed. 837, 5 Sup. Ct. Rep. 299; tion, however, of the statute under which St. Louis, I. M. & S. R. Co. v. Berry, 113 the union of the two corporations was made, U. S. 465, 28 L. ed. 1055, 5 Sup. Ct. Rep. 529; and the transactions by which the union Keokuk & W. R. Co. v. Missouri, 152 U. S. was accomplished, shows that the Brigh301, 38 L. ed. 450, 14 Sup. Ct Rep. 592; Nor-ton Railroad has ceased to exist as folk & W. R. Co. v. Pendleton, 156 U. S. corporation. The Rochester Railroad first 667, 39 L. ed. 574, 15 Sup. Ct. Rep. 413; took a lease of the Brighton Railroad, apYazoo & M. Valley R. Co. v. Adams, 180 U.parently for the purpose of bringing itself S. 1, 45 L. ed. 395, 21 Sup. Ct. Rep. 240; Grand Rapids & I. R. Co. v. Osborn, 193 U. S. 17, 48 L. ed. 598, 24 Sup. Ct. Rep. 310; San Antonio Traction Co. v. Altgelt, 200 U. S. 304, 50 L. ed. 491, 26 Sup. Ct. Rep. 261.

within the provisions of the act of 1879. Then all the stock of the latter corporation was acquired by exchange of shares of stock of the former corporation. Then a certificate of the transfer of stock was filed with

Thereupon, by APPEAL from the Circuit Court of the

United States for the District of Idaho to review a decree sustaining the validity of a prior decree set up in the bill as the basis of title in suit. Dismissed for want of jurisdiction.

Statement by Mr. Justice Day:

the secretary of state. Thereupon, by operation of the law, the "estate, property, rights, privileges, and franchises" of the Brighton Railroad vested in the Rochester Railroad, to be thereafter controlled by the Rochester Railroad in its own corporate name. The law does not expressly dissolve the selling corporation, but it leaves it without stock, officers, property, or franchises. A corporation without shareholders, without officers to manage its business, without property with which to do business, and without the right lawfully to do business, is dissolved by the operation of the law which brings this condition into existence. Maine C. R. Co. v. Maine; Keokuk & W. R. Co. v. Missouri; and Yazoo & M. Valley R. Co. v. Adams, ubi supra. The judgment of the Supreme Court of Mining & Smelting Company, and complain. New York is, therefore, affirmed.

Mr. Justice White concurs in the result.

EMPIRE STATE-IDAHO MINING & DEVELOPING COMPANY and Federal Mining & Smelting Company, Appts.,

V.

KENNEDY J. HANLEY.

Appeal-direct review of decree of circuit court-when jurisdiction is in issue.

1. A case cannot be brought up to the Supreme Court of the United States by direct appeal from a Federal circuit court, under the act of March 3, 1891 (26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 488), § 5, as one in which the jurisdiction of the court is in issue, where the jurisdiction challenged is not that of the court rendering the decree from which the appeal is taken, but is that of the court which rendered a former decree, which is set up in the bill as the basis of the title in suit. Appeal-direct review of decree of circuit court-case involving_construction or ap- | plication of Federal Constitution.

The defendant in error, complainant below, brought suit in the circuit court of the United States for the district of Idaho against the Empire State-Idaho Mining & Developing Company and the Federal Mining & Smelting Company, appellants herein. The bill, filed July 27, 1904, alleged diversity of citizenship as the ground of jurisdiction, and averred that the Empire State-Idaho Mining & Developing Company, the Federal

ant are the owners and possessors, as tenants in common, of the Skookum mine and mining claim and the ores therein contained, situated in Yreka mining district, Shoshone county, Idaho. The complainant was alleged to be the owner of an undivided oneeighth interest in the fee thereof, and the Empire State-Idaho Mining & Developing Company the owner of the undivided seven eighths of said mine and claim.

There are other allegations, not necessary to be here set out, and then, in the eighth paragraph of the bill, it is alleged:

"8. That prior to May 17, 1902, the defendant Empire State-Idaho Mining & Developing Company extracted from said mine, through said tunnels, large quantities of ore, and sold the same, and received all of the proceeds thereof, and paid no part of the same to complainant; that complainant brought suit on March 19, 1899, in the United States circuit court, district of Idaho (a court having jurisdiction of the parties and subject-matter), against said defendant and Charles Sweeny and F. Lewis Clark, to recover his share of the proceeds, and to quiet his title to said mine and ore bodies; and in said suit recovered a decree against said defendant Empire State-Idaho Mining & Developing Company, duly given and made in said United States circuit court at Moscow, Idaho, on or about November 17, 1902, for the sum of one hundred seventy-five thousand dollars ($175,000), and which decree quieted the title of this complainant to said one-eighth interest in said claim and ore bodies, a certified and attested copy of which decree was, on the

2. A case in which the contention is made that the decree which is the basis of suit is void as violating the right, under the Federal Constitution, to a jury trial and to due process of law, does not involve the construction or application of such Constitution, within the meaning of the act of March 3, 1891, § 5, authorizing direct appeals from the circuit or district courts to the Federal Supreme Court, where the real issue as to such prior decree was whether it was res judicata between the parties, or, as is contended by the appellants, was ren--day of November, 1902, recorded in Shodered without jurisdiction.

[No. 206.]

shone county, Idaho, and the amount decreed to complainant therein remains unpaid and unsatisfied, excepting the sum of

Argued February 1, 1907. Decided March $5,523.42; that, as the result of an appeal

25, 1907.

from said decree by complainant, the same

The bill avers the extraction of a large amount of ore in which the complainant alleges he is entitled to an interest, and that the defendants the Empire State-Idaho Mining & Developing Company and the Federal Mining & Smelting Company deny the title of the complainant to the mining and ore bodies. It further avers that the defendants are appropriating the ores mined to their own use, and, after other allegations not necessary to be set out, prays for an injunction restraining the defendants from extracting ore from the Skookum mine pending the suit, and for an accounting for the ores extracted from the mines and claim since May 17, 1902.

was, on the 10th day of May, 1904, so modi- | porting to quiet title was rendered, and for fied as to make the amount thereof $255,- the further reason that, at the time of the 061.40, with interest thereon from February commencement of said action, the defendant 15 until paid, at 7 per cent per annum, and herein, Empire State-Idaho Mining & Dethe said amount and every part thereof is veloping Company, was, as shown by the now unpaid." complaint herein, in exclusive possession of such ore bodies, and the complainant was out of possession thereof, and an action of law alone would lie in the Federal court to determine title to such ore bodies, and that the defendant therein, being the defendant Empire State-Idaho Mining & Developing Company, had a right, under the laws and Constitution of the United States, to a trial by jury of the question of title to said ore bodies, and defendants allege that so much of the decree in said action as undertook or purported to quiet title to such ore bodies was and is absolutely void as to the Empire State-Idaho Mining & Developing Company, because the same constituted and was in fact an attempt to deprive it of its property without due process of law within the meaning of article 5 of the amendments to the Constitution of the United States, and because the same constituted an adjudication of its property rights without its consent by the court without a jury, contrary to the provisions of article 7 of the amendments to the Constitution of the United States.

By the amended answer the defendants, among other defenses, set up that the ores which they are extracting belong to a vein or lode not having its apex within the Skookum mining claim, but belonging to a vein having its apex within the lode mining claim lying to the north of the Skookum claim and a part of the San Carlos claim, owned by the defendants, and deny that the defendants are mining any ores in which the complainant has any right, and avers that the claim thereto is without merit; and, coming to answer the eighth paragraph of the bill, setting up the decree upon which the plaintiff relied for his title, the defendants set up paragraphs 6 and 7:

"6. Answering paragraph eighth of the bill, these defendants admit that an action was brought against the parties named in said paragraph as alleged therein, but deny that said action was brought to quiet title to said ore bodies, or that the decree therein did in fact quiet title to said ore bodies or to an undivided one-eighth interest therein in the complainant, and allege further concerning said decree in said action that the court, in the said action, had no jurisdiction to determine title to the said Skookum mine or to the ore bodies lying within or beneath the said mining claim, for the reason that the bill of complaint in the said action does not purport to be an action to quiet title to the said mine or ore bodies, nor does the same make a case for the quieting of title thereto, nor is it such as to authorize the decree rendered in said action, purporting to quiet the title to said mine and ore bodies, and for the further reason alleged by defendants to be a fact, that no opportunity was given to the defendants therein to litigate the title to said ore bodies before the decree in said action pur

"7. The defendants attach hereto, marked Exhibit A, and pray that the same may be taken as a part of this answer, copies of the complaint, answer, and replication in the action referred to in the eighth paragraph in the bill, and allege that the same constituted the sole pleadings in the said action, and, together with the evidence, constituted the sole basis for the final decree rendered therein, a copy of which is attached hereto and marked Exhibit B, and made a part hereof; that after the replication in said cause was filed testimony was taken before an examiner, on the part of the complainant, in support of the allegations contained in the bill, to wit, the allegations that the defendants Clark and Sweeney had acquired the one-eight interest in the Skookum mine from the complainant by fraud, covin, and deceit, and testimony was introduced by the defendants contradicting the testimony of the plainant, and tending to support the affirmative allegations of the answer, and no testimony was offered or taken, either for complainant or defendants, concerning the said one-eighth interest except the evidence for and against fraud, covin, and deceit, as before alleged. Thereupon the said cause was submitted to the court for decision, and the said circuit court entered a decree in favor of the defendants therein. Thereupon complainant in that suit appealed to

The complainant below filed exceptions to this amended answer, in which he averred that, in the former decree, the title to the ore bodies in question was quieted, and that the issues made in that case were within the jurisdiction and power of the court to determine, and that the question of the right and title to one eighth of the Skookum mine and mining claim and ores therein contained had been determined in the former suit in favor of the complainant, and the said question had become res judicata in a court having jurisdiction of the parties and the subject-matter.

Upon hearing the exceptions to the amended answer, they were sustained and the answer held insufficient. Thereupon the defendants, averring that the court was in error and that the said amended answer constituted a defense, declined to plead further, and elected to stand upon the amended answer. The complainant thereupon moved the court for a final decree for one eighth of the amounts stated in paragraph 9 of the answer to have been mined as therein stated. A final decree was rendered accordingly, and thereupon a direct appeal was taken to this court.

the United States court of appeals for the | facts hereinbefore set up, were estopped to ninth circuit from the said decree, and the litigate the said facts." said court, after a hearing upon the pleadings and the evidence before it, found that the allegations of the bill relating to the fraud in procuring title to the one-eighth interest claimed by the said Hanley were sustained by the evidence, and the decree was reversed and the cause sent back to the circuit court for the further proceedings in accordance with the opinion. Thereupon an order was made by the circuit court directing an accounting, and evidence was introduced by complainant to show the amount and value of ores extracted from the Skookum mine prior to May, 1902, by the defendants in said suit. That defendants in the said action thereupon offered to prove that the said ore so extracted from underneath the Skookum mine prior to that time was part of the vein having its apex in the said San Carlos claim, above referred to, owned by defendants, and that the said San Carlos claim was so located that its extralateral rights included the ore bodies from which the said ores were extracted. The said offer to prove the said fact was thereupon denied by the said court, acting under the order of the United States circuit court of appeals for the ninth circuit, in a certain mandamus proceeding brought in said court to test the question; that defendants in the said action thereafter, and at all times, contended and insisted that they had a right to show in the accounting that the ores taken from under the Skookum claim were a part of the vein apexing in the San Carlos claim, of which the defendants were the owners, and that the court was without jurisdiction to render a decree in the said action quieting title to the Skookum mine, or to the ore bodies referred to in the bill of complaint, but its contentions and objections and were overruled and the decree averred by the complainant was rendered notwithstanding such protests and objections; and defendants aver that the said decree purporting to quiet title in said ore bodies was rendered without evidence being taken upon the said contention of the defendants, and without any evidence whatever being heard which threw any light upon the contention; and said decree was thereafter, upon appeal to the United States circuit court of appeals for the ninth circuit, affirmed, the court in said cause holding as ground for its action that the bill of complaint made a cause for quieting title to the one-eighth interest in the said Skookum mine and to the ore bodies in the limits thereof, and that the defendants in said cause, having failed to plead title to the ore bodies in themselves by virtue of the

Messrs. George Turner and F. T. Post for appellants.

Mr. Myron A. Folsom for appellee.

Mr. Justice Day delivered the opinion of the court:

In the brief and argument of the learned counsel for the appellants it is said: "The sole question in the case is whether, on the facts set up and pleaded in the answer, there was jurisdiction in the United States circuit court in the former suit to render the judgment quieting in the complainant, Hanley, title to one eighth of all the ore bodies found within the boundaries of the Skookum mining claim. The lower court thought the answer failed to show want of jurisdiction, and sustained complainant's exceptions."

A preliminary question for examination in this court, although not made in argument by counsel, is whether this court has jurisdiction of this case by direct appeal from the judgment rendered in the circuit court of Idaho. It is apparent from the statement preceding this opinion that the extent and effect of the adjudication in the first case, wherein the complainant alleges title was decreed to him, was the real controversy between the parties. The complainant contended that the court in the former case had adjudicated title to all of

the ore bodies found within the boundaries | construction or application of the Constituof the Skookum claim." The defendants tion, or the validity of such laws." contended that the ore bodies in controversy belonged to another mine, the San Carlos, the property of the defendants, by reason of the fact that they are of a vein which has its apex in the San Carlos mining claim, and not in the Skookum; and that the decree in the former suit was without jurisdiction in so far as it undertook to quiet title for such ore bodies, because the pleadings in that suit made no case for such de

cree.

If this case can come here by direct appeal it must be because it is within § 5 of the court of appeals act 1891, providing for direct appeals in certain cases from the circuit court to this court. 26 Stat. at L. 827, chap. 517, § 5, U. S. Comp. Stat. 1901, p. 488. It cannot be brought directly here as a case in which the jurisdiction of the court is in issue; for the jurisdiction challenged is not that of the court rendering the decree from which this appeal is taken, but is that of the court rendering the former decree, which is set up in the complaint as the basis of the title sued upon. Re Lennon, 150 U. S. 393, 37 L. ed. 1120, 14 Sup. Ct. Rep. 123.

Re Lennon, supra, was a proceeding in habeas corpus to discharge a party held upon an order for imprisonment for failing to pay a fine imposed for contempt. The petitioner alleged that the circuit court had no jurisdiction of the case in which the order of injunction had been issued, for violation of which the petitioner was alleged to be guilty of contempt; and that it had no jurisdiction either of the subject-matter or of the person of the petitioner. The application being denied and direct appeal being taken to this court, it was held that it would not lie under § 5, act of March 3, 1891, because the jurisdiction of the circuit court of the petition for habeas corpus was not in issue, nor was the construction or application of the Constitution involved. Of the latter phase of the case Mr. Chief Justice Fuller, speaking for the court, said:

"Nor can the attempt be successfully made to bring the case within the class of cases in which the construction or application of the Constitution is involved in the sense of the statute, on the contention that the petitioner was deprived of his liberty without due process of law. The petition does not proceed on any such theory, but entirely on the ground of want of jurisdiction in the prior case over the subject

tioner, in respect of inquiry into which the jurisdiction of the circuit court was sought. If, in the opinion of that court, the restraining order had been absolutely void, or the petitioner were not bound by it, he would have been discharged, not because he would otherwise be deprived of due process, but because of the invalidity of the proceedings for want of jurisdiction. The opinion of the circuit court was that jurisdiction in the prior suit and proceedings existed, and the discharge was refused; but an appeal from that judgment directly to this court would not, therefore, lie on the ground that the application of the Constitution was involved as a consequence of an alleged erroneous determination of the questions actually put in issue by the petitioner."

If the case is properly here, it must be because it is one which involves the construction or application of the Constitution of the United States. It has been repeated-matter and over the person of petily held that it is only when the Constitution of the United States is directly and necessarily drawn in question that such an appeal can be taken, and the case must be one in which the construction or application of the Constitution of the United States is involved as controlling. We think this case is not of that character. It is evident that the real issue as to the former judgment was whether it was res judicata between the parties, or, as contended by the appellants, rendered without jurisdiction. The court, in deciding against the appellants, decided that the court had jurisdiction, and that the former decree was conclusive. This decision does not necessarily and directly involve the construction or application of the Constitution of the United States. In World's Columbian Exposition v. United States, 6 C. C. A. 71, 18 U. S. App. 159, 56 Fed. 657, Mr. Chief Justice Fuller, speaking for the court, said: "Cases in which the construction or application of the Constitution is involved, or the constitutionality of any law of the of the United States is drawn in question, are cases which present an issue upon such construction or application or constitutionality, the decision of which is controlling; otherwise every case arising under the laws of the United States might be said to involve the

In Carey v. Houston & T. C. R. Co. 150 U. S. 170, 37 L. ed. 1041, 14 Sup. Ct. Rep. 63, in which a bill in equity had been filed in order to impeach and set aside a decree of foreclosure on the ground of fraud and want of jurisdiction in the foreclosure suit, it was held that no case for appeal directly to this court was made as one that involved the construction or application of the Constitution of the United States. In that case Mr. Chief Justice Fuller, delivering the opinion of the court, said:

"It is argued that the record shows that

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