pons gathered together for that purpose. The suit is their own in reality, though they have agreed that the plaintiff may retain one-half of what he collects for the use of his name and his trouble in collecting. It is true, the transaction is called a purchase in the papers that were executed, and that the plaintiff gave his note for $500, but the time for payment was put off for two years, when it was, no doubt, supposed the result of the suit would be known. No money was paid, and as the note was not negotiable, it is clear the parties intended to keep the control of the whole matter in their own hands, so that if the plaintiff failed to recover the money, he could be released from his promise to pay. In the language of Mr. Justice FIELD, speaking for the court in Detroit v. Dean, 106 U. S. 541, S. C. 1 SUP. CT. REP. 560, applied to the facts of this case, the transfer of the coupons was "a mere contrivance, a pretense, the result of a collusive arrangement to create" in favor of this plaintiff "a fictitious ground of federal jurisdiction," so as to get a reexamination in that jurisdiction of the question decided adversely to the owners of the coupons by the highest judicial tribunal of the state. Hawes v. Oakland, 104 U.S. 459; Hayden v. Manning, 106 U. S. 586; S. C. 1 SUP. CT. REP. 617; Bernards Tp. v. Stebbins, 109 U. S. 341; S. C. 3 SUP. CT. REP. 252. We therefore say, in answer to the first question certified, that the plaintiff cannot maintain the action in the circuit court upon the coupons declared upon. The judgment of the circuit court is consequently reversed, and the cause remanded, with instructions to dismiss the suit for want of jurisdiction and without prejudice. (114 U. S. 133) DETROIT CITY RY. Co. v. GUTHARD.1 SUPREME COURT-JURISDICTION-REVIEW OF JUDGMENT OF HIGHEST COURT IN A State. In order to give the supreme court jurisdiction to review a judgment of the highest court in a state, it must appear that there has been a decision by such state court of one or more of the questions specified in section 709 of the Revised Statutes, and in the way there mentioned. It is what has been actually decided by the state court that is to be considered, not what might have been considered; and there must appear affirmatively upon the record, not only the question, but the decision. In Error to the Supreme Court of the State of Michigan. On motion to dismiss. John C. Donnelly, F. A. Baker, and Geo. F. Edmunds, in opposition to motion. Henry M. Duffield, for motion. WAITE, C. J. This is a motion to dismiss a writ of error to the supreme court of Michigan on the ground that the record does not show that any federal question is involved. The case is this: The Detroit City Railway Company was organized in May, 1863, under a general law of Michigan to provide for the construction of tram railways, passed February 13, 1855, to operate a street railway in Detroit. Article 15, § 1, of the constitution of the state, which went into effect January 1, 1851, is as follows: "Corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes. All laws passed pursuant to this section may be amended, altered, or repealed.' " Sections 22 and 31 of the law under which the railway company was incorporated are as follows: "Sec. 22. Each and every railway company formed under this act shall pay to the treasurer of the state of Michigan an annual tax at the rate of onehalf of one per cent. on the whole amount of capital paid in upon the capital stock of said company, which said tax shall be estimated upon the last pre 1 S. C. 16 N. W. Rep. 328. 135 ceding report of said company, and shall be paid to the said treasurer on the first Monday of July in each year, and shall be in lieu of all other taxes upon all the property of said company.' "Sec. 31. The legislature may at any time alter, amend, or repeal this act, but such alteration, amendment, or repeal shall not operate as an alteration or amendment of the corporate rights of companies formed under it, unless specially named in the act so altering or amending this act, nor shall the dissolution of any such company take away or impair any remedy given for or against said corporation, its stockholders or officers, for any liability which shall have been previously incurred." Section 22 of this act was repealed March 13, 1882. In the repealing act the Detroit City Railway Company was not specially named. On the fourteenth of March, 1882, a general tax law was enacted. This law provided that all property within the jurisdiction of the state not expressly exempt should be subject to taxation, and that all corporate property, except when some other provision is made by law, should be assessed to the corporation as to a natural person in the name of the corporation. Under the authority of this last law, the city of Detroit assessed a tax on the property of the railway company, and Guthard, the receiver of taxes for the city, on failure of the company to comply with his demand for payment, in regular course of his proceeding for the collection, levied upon 61 horses to sell at public auction and make the money. The company thereupon brought an action of replevin for the recovery of the horses. Upon the trial of this action the only question in dispute was as to the validity of the tax. The supreme court of the state, on writ of error, decided that the tax was valid, and gave judgment accordingly. To reverse that judgment this writ of error was brought. The rule which governs our jurisdiction in this class of cases is thus stated by Mr. Justice MILLER for the court in Bridge Prop'rs v. Hoboken Co. 1 Wall. 143: "The court must be able to see clearly, from the whole record, that a certain provision of the constitution or act of congress was relied on by the party who brings the writ of error, and that the right thus claimed by him was denied." In Crowell v. Randell, 10 Pet. 398, one of the propositions "established," after a careful review of the cases, was "that it is not sufficient to show that a question might have arisen, or been applicable to the case, unless it is further shown, on the record, that it did arise, and was applied by the state court in the case." And at the last term, in Chouteau v. Gibson, 111 U. S. 200, S. C. 4 SUP. CT. REP. 340, it was said: "From the beginning it has been held that, to give us jurisdiction in this class of cases, it must appear affirmatively on the face of the record, not only that a federal question was raised and presented to the highest court of the state for decision, but that it was decided, or that its decision was necessary to the judgment or decree rendered in the case." Murdock v. Memphis, 20 Wall. 590, 636. The reason of this rule is obvious. Our jurisdiction for the review of a judgment of the highest court of a state depends on the decision by that court of one or more of the questions specified in section 709 of the Revised Statutes, and in the way there mentioned. If there has been no such decision in the suit, there can be no re-examination of the judgment here. It is what was actually decided that we are to consider, not what might have been decided; and, as our jurisdiction must appear affirmatively on the face of the record before we can proceed, the record must show, either in express terms or by fair implication, not only the question, but its decision. It is not enough to find by searching after judgment that the requisite question might have been raised and presented for decision. It must appear that it was actually raised and actually decided. Brown v. State of Colorado, 106 U. S. 97; S. C. 1 SUP. CT. REP. 175. It remains only to apply this well-established rule to the facts as they appear in this record. The claim now is that, under the operation of sections 22 and 31 of the incorporating act, the state entered into a contract with this corporation not to subject it to taxation otherwise than in the way provided in section 22, unless it did so by a statute in which the company should be specially named. The record certainly does not show that any such claim was made in the state courts, or that such a question was raised or presented for decision, or that it was decided. Nothing of the kind appears, either in the pleadings or the findings of fact, on which alone the case was heard in the supreme court. The apparent question presented for decision was whether the state had changed the mode of taxation by what was done, not whether, it was prohibited by the constitution of the United States from doing so without specifying that the repeal of section 22, and the provisions of the general tax law of 1882, were to operate on this particular company, and referring to it by name. No judge, in deciding the case as it came up on the record, would be likely to suppose that, if he gave judgment for the receiver of taxes, he would deny the company any "right, title, privilege, or immunity" "specially set up or claimed" under the constitution of the United States. It is true that such a right might have been set up and claimed, and if the court below had certified in proper form that it was, and that it was denied, we could have taken jurisdiction. The court has, however, not only not made such a certificate, but it has expressly refused to do so upon application specially made for that purpose. All this appears affirmatively in the motion papers. We are referred to the opinion of the court below, which is found in the transcript, as showing a decision of the federal question involved. The constitution of Michigan requires that the opinion of the supreme court shall be in writing, signed by the judges concurring therein, and filed by the clerk. From the opinion in this case it appears that the point determined, and on which the judgment rested, was that the term "corporate rights," as used in section 31, did not include incidental privileges and immunities, such as a special standard of taxation. No reference whatever is made to any question of charter contract. On the whole we are satisfied we have no jurisdiction in the case, and the motion to dismiss is granted. (114 U. S. 176) CHESAPEAKE & O. RY. Co. v. MILLER, Auditor, etc. 1. CONSTITUTIONAL LAW-LAW IMPAIRING OBLIGATION OF CONTRACTS-TAXATION OF RAILROAD COMPANY. A railroad company, having obtained its charter under a general law, which the constitution of the state granting it declares to be subject to legislative alteration and amendment, and its certificate of incorporation being the conveyance to it by the name it has chosen, as a purchaser at a judicial sale and recorded as required, does not thereby succeed to the exemption from taxation accorded to the company to which it has succeeded by such purchase, so as to put it beyond the legislative power to subject its property to taxation thereafter without impairing the obligation of contracts. 2. SAME RIGHTS OF ONE RAILROAD COMPANY AS PURCHASER OF ANOTHER. An exemption from taxation upon certain conditions granted by charter to a certain corporation specifically named, does not necessarily accrue to a new corporation which, under another name, succeeds to the old corporation as purchaser. In Error to the Supreme Court of Appeals of the State of West Virginia. Wm. J. Robertson, Geo. F. Edmunds, and Jas. H. Ferguson, for plaintiff, in error. C. C. Watts, for defendant in error. *MATTHEWS, J. This writ of error brings into review a final decree of the supreme court of appeals of the state of West Virginia dismissing the bill of complaint filed by the plaintiff in error, the error assigned being that that court gave effect to a statute of the state alleged to be void, on the ground *179 that it impaired the obligation of a contract between the plaintiff in error and the state of West Virginia. The statute thus drawn in question is an act of the legislature of West Virginia, passed March 7, 1879, subjecting the property of the plaintiff in error in that state to taxation. The contract alleged to be thus broken by the state is one of exemption from taxation, contained in the seventh section of an act of the legislature of West Virginia, passed March 1, 1866, entitled "An act to incorporate the Covington & Ohio Railroad Company," and is in the following words: "(7) The rate of charge by said company for passengers and freight transported on the main line and branches of said railroad shall never exceed the highest allowed by law to other railroads in the state, and no discrimination shall be made in such charges against any connecting railroad or canal company chartered by the state, and no taxation upon the property of the said company shall be imposed by the state until the profits of said company shall amount to ten per cent. on the capital of the company." The plaintiff in error, (complainant below,) alleging that it was entitled to the benefit of this exemption by way of contract with the state, and that no profits had been made by it upon its capital, prayed for an injunction to restrain the appellee, the auditor of West Virginia, from proceeding under the act of March 7, 1879, to assess and collect any tax upon its property within the state. The plaintiff in error became a party to the contract contained in the act of March 1, 1866, to incorporate the Covington & Ohio Railroad Company, in the following manner: This act was similar in its terms to one passed about the same date by the general assembly of the state of Virginia. Both had in view the completion of a railroad from Covington, in Virginia, to some point on the Ohio river, the construction of which had been undertaken by the state of Virginia as a public work by its own means, but which was suspended, after an expenditure of several millions of dollars, in consequence of the breaking out of the civil war in 1861. A portion of it was within the territory that became West Virginia, and thenceforward that part of the work fell within the jurisdiction and ownership of the new state. To provide for its completion was the object of the act of March 1, 1866, to incorporate the Covington & Ohio Railroad Company. That act did not, by its terms, create a corporation, but authorized a future organization under it. It ceded to the company, when constituted and certified as thereinafter provided, "all the rights, interest, and privileges, of whatsoever kind, in and to the Covington & Ohio Railroad, and appurtenances thereunto belonging, now the property of the state of West Virginia, upon condition that it shall within six months after its incorporation, as provided in the tenth section of the act, commence, and within six years complete, equip, and operate a railroad," etc., as therein described; and a failure to comply with this condition operated to forfeit the title to the road, which should then revert to the state. The act also appointed commissioners on the part of the state to act in conjunction with others appointed by the state of Virginia, whose duty it was to offer the benefits of the charter "for the acceptance of capitalists, so as to secure the speediest and best construction, equipment, and operation of said railroad." "To this end," it added, "they are empowered to make a contract with any parties who shall give the best terms and the most satisfactory assurances of capacity and responsibility, and to introduce into said contract any additional stipulations for the benefit of the state and in furtherance of the purposes herein declared and not inconsistent with this act, which contract shall be, to all intents and purposes, as much a part of this charter as if the same had been herein included at the time of the passage of this act." The certificate of these commissioners of the due execution of such a contract, and the organization of the company, should operate to confer upon said company all the benefits of this charter, subject only to the provisions of the Code of Virginia for the government of internal improvement companies, so far as not inconsistent with that act. On February 26, 1867, the legislature of West Virginia passed an act to provide for the completion of a line or lines of railroad from the waters of the Chesapeake to the Ohio river, which authorized the consolidation of the Covington & Ohio Railroad Company, when organized under the act of March 1, 1866, with one or more of several other railroad companies, including the West Virginia Central Railway Company; the consolidated company to be known as the Chesapeake & Ohio Railroad Company, and to be vested with "all the rights, privileges, franchises, and property which may have been vested in either company prior to the act of consolidation." It was also thereby provided that the Virginia Central Railroad Company and the West Virginia Central Railway Company, or either of them, "may contract with the Covington & Ohio Railroad commissioners for the construction of the railroad from Covington to the Ohio river, and in the event such contract be made, the said Virginia Central Railroad Company, or the West Virginia Central Railway Company, shall be known as the Chesapeake & Ohio Railroad Company, and shall be entitled to all the benefits of the charter of the Covington & Ohio Railroad, and to all the rights, interests, and privileges which by this act are conferred upon the Chesapeake & Ohio Railroad Company when organized." Accordingly, on August 31, 1868, the commissioners of Virginia and of West Virginia entered into a contract with the Virginia Central Railroad Company, by which the Chesapeake & Ohio Railroad Company was formed, and under which it was organized, and the same was approved, ratified, and confirmed by an act of the legislature of West Virginia, "confirming and amending the charter of the Chesapeake & Ohio Railroad Company, passed January 26, 1870." Among other things, it was therein provided that the company might borrow such sums of money, at a rate of interest not exceeding 8 per cent. per annum, as might be necessary, in addition to the funds arising from stock subscriptions for the completion of the road, and should have power to execute a lien on its property and resources to secure the payment of the principal and interest of such loans; and the Chesapeake & Ohio Railroad Company was thereby declared to be entitled to all the benefits of the charter of the Covington & Ohio Railroad, and to all the rights, interests, benefits, and privileges, and be subject to all the duties and responsibilities, provided and declared in the said contract, and in the statutes therein referred to. In pursuance of these powers, the Chesapeake & Ohio Railroad Company completed the contemplated line of railroad and put the same in operation; not, indeed, strictly within the time limited in the charter, but the forfeiture thereby incurred was released by an act of the legislature of West Virginia, passed February 20, 1877. In the mean time, to raise the funds necessay to complete the construction and equipment of the road, a large amount of bonds had been issued by the company, secured by several deeds of trust, the particulars of which are fully set out in the bill; and default in the payment of interest having occurred, due proceedings for the foreclosure and sale of the property embraced in the deeds of trust were prosecuted to final decrees in the courts of Virginia and West Virginia; so that, in the latter, all of the railroad and other property situate in that state, were brought to sale under a decree of the circuit court for the county of Kanawha, in West Virginia, rendered on December 18, 1877, and were sold and conveyed to the purchasers, who, in pursuance of the statute then in force, applicable thereto, became a corporation under the name of the Chesapeake & Ohio Railway Company, the plaintiff in error in these proceedings. The statute under which these proceedings took place was an act of the legislature of West Virginia passed February 18, 1871, relating to sales made under deeds of trust, or mortgages by railroads or other inter |