argued were to the admission of evidence at the trial; to the overruling of the motion in arrest of judgment; and to "giving judgment against the plaintiff in error upon the contracts alleged and proved, because, upon the pleadings and evidence, it did not appear that the court had jurisdiction to hear and determine an action brought by the defendant in error on said contracts, or any of the same."

The first question to be determined is how far this court upon this record has authority to consider the alleged errors. By the act of March 3, 1865, c. 86, § 4, re-enacted in the Revised Statutes, it is provided that issues of fact ing civil cases may be tried and determined by the circuit court without the intervention of a jury, whenever the parties, or their attorneys of record, file a stipulation in writing with the clerk of the court waiving a jury; that the finding of the court upon the facts shall have the same effect as the verdict of a jury; and that its rulings in the progress of the trial, when excepted to at the time, and presented by bill of exceptions, may be reviewed by this court upon error or appeal. 13 St. 501; Rev. St. §§ 649, 700.

Before the passage of this statute, it had been settled by repeated decisions that in any action at law in which the parties waived a trial by jury and submitted the facts to the determination of the circuit court upon the evidence, its judgment was valid; but that this court had no authority to revise its opinion upon the admission or rejection of testimony, or upon any other question of law growing out of the evidence, and therefore, when no other error appeared on the record, must affirm the judgment. Guild v. Frontin, 18 How. 135; Kelsey v. Forsyth, 21 How. 85; Campbell v. Boyreau, Id. 223. The reason for this, as stated by Chief Justice TANEY in Campbell v. Boyreau, was that, "by the established and familiar rules and principles which govern common-law proceedings, no question of law can be reviewed and reexamined in an appellate court upon writ of error, (except only where it arises upon the process, pleadings, or judgment in the cause,) unless the facts are found by a jury, by a general or special verdict, or are admitted by the parties upon a case stated in the nature of a special verdict, stating the facts and referring the questions of law to the court." 21 How. 226. Even in actions duly referred by rule of court to an arbitrator, only rulings and decisions in matter of law after the return of the award were reviewable. Thornton v. Carson, 7 Cranch, 596, 601; Alexandria Canal Co. v. Swann, 5 How. 83; York & C. R. Co. v. Myers, 18 How. 246; Heckers v. Fowler, 2 Wall. 123. Since the passage of this statute, it is equally well settled by a series of decisions that this court cannot consider the correctness of rulings at the trial of an action by the circuit court without a jury, unless the record shows such a waiver of a jury-as the statute requires, by stipulation in writing, signed by the parties or their attorneys, and filed with the clerk. Flanders v. Tweed, 9 Wall. 425; Kearney v. Case, 12 Wall. 275; Gilman v. Illinois & M. T. Co. 91 U. S. 603, 614; Madison Co. v. Warren, 106 U. S. 622; S. C. 2 Sup. Ct. REP. 86; Alexander Co. v. Kimball, 106 U. S. 623; S. C. 2 Sup. CT. REP. 86, note. In Flanders v. Tweed, Mr. Justice NELSON quoted the passage just cited from the opinion of Chief Justice TANEY in Campbell v. Boyreau, and said that when a trial by jury had been waived, but there was no stipulation in writing, no finding of the facts, and no question upon the pleadings, the judgment must, according to the course of proceeding in previous cases, be affirmed, unless under very special circumstances this court otherwise ordered. 9 Wall. 429, 431.

t

The most appropriate evidence of a compliance with the statute is a copy of the stipulation in writing filed with the clerk. But the existence of the condition upon which a review is allowed is sufficiently shown by a statement, in the finding of facts by the court, or in the bill of exceptions, or in the record of the judgment entry, that such a stipulation was made in writing. Kearney v. Case, 12 Wall. 283, 284: Dickinson v. Planters' Bank, 16 Wall.

*608

250. So it has been held that a written consent of the parties, after a trial by jury has begun, to withdraw a juror and refer the case to a referee, in accordance with a statute of the state authorizing this course, is a sufficient stipulation in writing waiving a jury; and that when the court has authority to refer a case upon consent in writing only, an order expressed to be made "by consent of parties," that the case be referred, necessarily implies that such consent was in writing. Boogher v. Insurance Co. 103 U. S. 90. See, also, U. S. v. Harris, 106 U. S. 629, 634, 635; S. C. 1 SUP. CT. REP. 601. And since the statute, as before, a judgment upon an agreed statement of facts or case stated, signed by the parties or their counsel, and entered of record, leaving no question of fact to be tried, and presenting nothing but a question of law, may be reviewed on error. Supervisors v. Kennicott, 103 U. S. 554; U. §. v. Eliason, 16 Pet. 291; Burr v. Des Moines Co. 1 Wall. 99; Campbell v. Royreau, above cited.

*The record before us contains nothing to show that there was any stipulation in writing waiving a jury. The circuit court had authority to try and determine the case, whether the waiver was written or oral. In the finding of facts and in the judgment there is no statement upon the subject. The only evidence of a waiver of a jury is in the statement in the record that when the case came on for trial "the issue joined by consent is tried by the court, a jury being waived:" and in the recital at the beginning of the bill of exceptions, "the above cause coming on for trial, by agreement of parties, by the court, without the intervention of a jury." The case cannot be distinguished, in any particular favorable to the plaintiffs in error, from those of Madison Co. v. Warren, and Alexander Co. v. Kimball, above cited, the latest adjudications upon the subject, both of which came up from the same court as the present case. In one of those cases, the statement in the record was "the parties having stipulated to submit the case for trial by the court without the intervention of a jury;" and, in the bill of exceptions, “said cause being tried by the court without a jury, by agreement of parties.' In the other case, the statement in the record was in the very same words as in the case at bar; and in the bill of exceptions was in these words: "upon the trial of this cause before the Hon. S. H. TREAT, sitting as circuit judge, a jury being waived by both parties.' The necessary conclusion is that this court has no authority to consider the exceptions to the admission of evidence at the trial. The attempt to sustain the motion in arrest of judgment, by an argument that the evidence was insufficient to warrant a recovery in this action, fails for the same reason, as well as because a motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is no part of the record for this purpose. Carter v. Bennett, 15 How. 354.

"9

609*

The plaintiffs in error further contend that neither of the special counts sets forth any cause of action, and that the finding and judgment, being general, and not limited to the common counts, should therefore be set aside. This objection, so far as it touches the sufficiency of the declaration to support the judgment, is fairly presented for the determination of this court, within the rule laid down by Chief Justice TANEY in Campbell v. Boyreau, and by Mr. Justice NELSON in Flanders v. Tweed, as already stated. But, by the law applicable to this case, the objection cannot be sustained. By the common law, indeed, a general verdict and judgment upon several counts in a civil action must be reversed on writ of error, if only one of the counts was bad. But Lord MANSFIELD "exceedingly lamented that ever so inconvenient and ill-founded a rule should have been established," and added, "what makes this rule appear more absurd is that it does not hold in the case of criminal prosecutions." Grant v. Astle, 2 Doug. 722, 730; Snyder v. U. S. 112 U. S. 216; S. C. 5 SUP. CT. REP. 118. In Illinois it has been changed by statute, providing that "whenever an entire verdict shall be given on sev

eral counts, the same shall not be set aside or reversed on the ground of any defective count, if one or more of the counts in the declaration shall be sufficient to sustain the verdict." Ill. Rev. St. 1874, c. 110, § 58. That statute governs proceedings in cases tried in the federal courts within that state. Rev. St. § 914; Townsend v. Jemison, 7 How. 706, 722; Sawin v. Kenny, 93 U. S. 289. And the rule thereby established must be applied to judgments lawfully rendered without a verdict. As the common counts in this declaration are indisputably good, the sufficiency of the special counts need not be considered. Judgment aflirmed.

(112 U. S. 609)

MEMPHIS & L. R. R. Co. (as reorganized) v. BERRY and others, as the Board of Railroad Commissioners.

(December 22, 1884.)

RAILROAD COMPANY-EXEMPTION FROM TAXATION-PERSONAL PRIVILEGE.

Where a state legislature authorizes the formation of a railroad company, to be a body corporate for certain purposes, and provides by its charter that it shall be exempt from taxation for a certain period of time from and after its completion, the exemption from taxation is a personal privilege of the very corporation specifically referred to, and ceases with it, unless the express and clear intention of the law requires the exemption to pass as a continuing franchise to a successor.

In Error to the Supreme Court of the State of Arkansas.

B. C. Brown, for plaintiff in error. U. M. Rose, for defendant in error. MATTHEWS, J. * This is a bill in equity filed in the chancery court of Pulaski county, Arkansas, seeking to enjoin the board of railroad commissioners of the state from appraising, for the purposes of taxation, any part of the property of the plaintiff in error, on the ground that it is exempted from taxation by a contract with the state contained in its charter of incorporation. The supreme court of the state, on appeal, affirmed the decree of the chancery court dismissing the bill. That decree of the supreme court is brought here by writ of error, for review, on the allegation that it enforced a law of the state impairing the obligation of a contract, in violation of the rights of the plaintiff in error under the constitution of the United States.

The question arises, and is to be determined, upon the following case: The Memphis & Little Rock Railroad Company was chartered by an act of the general assembly of the state of Arkansas, approved January 11, 1853. This act authorized the formation of a company to be a body corporate for the purpose of establishing communication by railroad between the city of Memphis, in Tennessee, and Little Rock, in Arkansas, and commissioners were named therein to open books for subscriptions to its capital stock. This was fixed for the purpose of organization at $100,000, to be increased to $2,000,000, at the pleasure of the company. When the necessary amount of capital stock had been subscribed, the subscribers were authorized to organize by the election of a board of directors. The ninth section of the act is as follows: "Sec. 9. The said company may at any time increase its capital to a sum sufficient to complete the said road, and stock it with anything sufficient to give it full operation and effect, either by opening books for new stock or by selling such new stock, or by borrowing money on the credit of the company, and on the mortgage of its charter and works; and the manner in which the same shall be done shall be prescribed by the stockholders at a general meeting," etc. It also contains the following: "Sec. 28. The capital stock of said company shall be exempt from taxation until the road pays a dividend of six per cent., and the road, with all its fixtures and appurtenances, including workshops, warehouses, and vehicles of transportation, shall be exempt from taxation for the period of twenty years from and after the completion of said road."

The company was organized under this act, and afterwards, in order to

610

*612

*613

borrow money for the prosecution of the enterprise, issued its bonds to the amount of $1,300,000, dated May 1, 1860, having 30 years to run, with interest at 8 per cent. per annum, and, to secure the payment of the same, executed and delivered a mortgage to Tate, Brinkley, and Watkins, as trustees for the bondholders, whereby it conveyed to them, in trust, the Memphis & Little Rock Railroad, its road-bed, right of way, and all works and rollingstock of or belonging to the company, "together with the charter by which said company was incorporated and under which it is organized, and all the rights and privileges and franchises thereof," and also all the lands, etc., belonging to said company. Subject thereto a second mortgage was made by the company on March 1, 1871, conveying all its property and franchises to Henry F. Vail, in trust for the holders of bonds secured thereby, amounting to $1,000,000. Default having been made by the company in the payment of interest on this loan, Vail, the trustee, in execution of the power conferred in the mortgage, sold and conveyed the mortgaged property, the title to which became vested in Stillman Witt and his associate bondholders, who organized the Memphis & Little Rock Railway Company, to which, on November 17, 1873, the said property was conveyed. This railway company, on December 1, 1873, issued its bonds to the amount of $2,600,000, and, to secure the same, by a deed of that date, conveyed all the franchises, privileges, and property so acquired by it to trustees, of whom Pierson, Matthews, and Dow became successors, in trust for the bondholders. The Memphis & Little Rock Railroad Company, the original corporation, made default in the payment of interest accruing upon the bonds secured by the mortgage of May 1, 1860, and its successor, the Memphis & Little Rock Railway Company, also made default in the payment of interest maturing on the bonds secured by the deed of December 1, 1873. Afterwards, on November 12, 1876, a bill in chancery was filed in the circuit court of the United States for the Eastern district of Arkansas, by the trustees against the two companies, to foreclose those mortgages, in which suit a final decree was rendered ordering a sale of the property described in the same, embracing the property and franchises of the said companies, and the charter of the Memphis & Little Rock Railroad Company; and a sale thereof was made and confirined, and a conveyance of the same executed to Pierson, Matthews, and Dow, in trust for the holders of the bonds of the Memphis & Little Rock Railway Company, secured by the deed of trust executed by that company. On April 28, 1877, the holders of these bonds executed certain articles of association, by which, after reciting the premises, they organized themselves into a company, claiming to become a corporation under the name of "The Memphis & Little Rock Railroad Company as reorganized," under and by virtue of the provisions of the act of January 11, 1853, for the incorporation of the original company; and afterwards, on April 30, 1877, Pierson, Matthews, and Dow conveyed to said company the property and franchises, including the charter of January 11, 1853; and thereupon the bill proceeds:

"Complainant submits that having thus duly purchased said charter of the Memphis & Little Rock Railroad Company under the power therein contained, and having organized thereunder, it is the owner and holder thereof, and that it has and is entitled to all the privileges and benefits in said act of the general assembly mentioned and set forth, among others to the contract contained in said section 28, by which the road, with all the franchises and appurtenances, including work-shops, warehouses, and vehicles of transportation, shall be exempt from taxation for the period of twenty years from and after the date of the completion of said road. Complainant further states that said road was not completed till the fifteenth day of November, 1874, and that the time of the exemption thereafter from taxation has not expired. It further states that the defendant herein first mentioned, acting as a board of railroad commissioners for this state, have demanded from the complainant a detailed

inventory of all the rolling stock belonging to the company, and the valuation thereof, as provided in section 48 of an act of the general assembly of the state or Arkansas, approved March 31, 1883, entitled, 'An act to revise and amend the revenue laws of the state of Arkansas,' and have also demanded from the complainant a statement or schedule, showing the length of the main and all the side tracks, switches, and turn-outs in each county in which the road is located, and the value of all improvements, stations, and structures, including the railroad track, as provided in section 46 of the same act. Complainant being willing, so far as it may without injury to itself, to comply with the laws of this said state, has, in compliance with the demand made upon it, made and returned said schedule to the said board, accompanying the same with a protest against any of the property in said schedule contained being assessed for taxation, in which protest complainant stated the grounds upon which said property was exempt from taxation. Complainant states and submits that all this property contained in the said schedules, copies of which it herewith files, marked 'I' and 'J,' and all the property described in said sections 46 and 48 of said act, are the identical property which is exempt from taxation by the contract in said charter contained."

*On December 9, 1874, an act was passed by the general assembly of Arkansas whereby the purchasers of a railroad of any corporation of the state and their associates acquiring title thereto by virtue of a judicial sale, or of a sale under a power contained in a mortgage or deed of trust were authorized to organize themselves into a body corporate, vested with all the corporate rights, liberties, privileges, immunities, powers, and franchises of and con cerning the railroad so sold, not in conflict with the provisions of the constitution of the state as fully as the same were held, exercised, and enjoyed by the corporation before such sale. A certificate of such organization was required to be filed in the office of the secretary of state within six months, specifying certain particulars. Laws Ark. 1874-75, p. 57. Prior to the passage of that act there seems to have been no statute authorizing the formation of such corporations, or prescribing a mode for their organization. In 1853, when the Memphis & Little Rock Railroad Company was chartered and organized as a corporation, the constitution of Arkansas, then in force, permitted the enactment of special acts of incorporation, and without any restriction upon the power to exempt corporations and their property from taxation. In 1868 a new constitution was adopted by the people of the state, which provided (article 5, § 48) that "the general assembly shall pass no special act conferring corporate powers. Corporations may be formed under general laws, but all such laws may from time to time be altered or repealed. *** The property of corporations, now existing or hereafter created, shall forever be subject to taxation the same as the property of individuals," and in article 10, § 2, that "laws shall be passed taxing by a uniform rate all moneys, credits, investment in bonds, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money."

It was decided by the supreme court of Arkansas, in the case of Oliver v. Memphis & L. R. R. Co. 30 Ark. 128, that the twenty-eighth section of the act of January 11, 1853, incorporating that company, already quoted, was a contract between it and the state, which could not be impaired by these provisions of the state constitution, because it was protected by the constitution of the United States. On October 13, 1874, the present constitution of Arkansas was adopted and took effect. Among its provisions are these: That the general assembly shall pass no special act conferring corporate powers, (article 12. § 2;) that corporations may be formed under general laws, which laws may, from time to time, be altered or repealed, (article 12, § 6;) that all property subject to taxation shall be taxed according to its value; that the following property shall be exempt from taxation: public property used exclusively for public purposes, churches used as such, cemeteries used exclu

*614