*531

the plaintiff, having received the amount taxed in his favor as attorneys' fees as part of the costs in the equity suit mentioned in the pleadings and evidence in this case, he cannot now recover anything on account of a attorneys' fees in this case.'

Judgment having been entered in favor of plaintiff and a motion for a new trial

Argued and Submitted January 29, 30, having been overruled, an appeal was taken

IN

1902. Decided March 10, 1902.

N ERROR to the Kansas City Court of Appeals for the State of Missouri to review a decision in favor of the plaintiff in an action on an injunction bond. Reversed. See same case below, 154 Mo. 300, 55 S. W. 470.

Statement by Mr. Justice White:

to the Kansas City court of appeals, and the judgment was affirmed. In the course of its opinion the court recited the contentions of the defendant, and held each of them to be untenable. These contentions were thus stated by the court:

"1. Defendant's objections to the judg ment below may be thus stated: First, that there was no breach of the conditions of the bond in that it was not alleged or The action below was brought by Elliott proved that any damages had been previousin the state circuit court of Cooper county, ly adjudged against the defendant, whereas Missouri, against the railway company, the condition of the bond is that defendant plaintiff in error herein. Recovery was 'should pay all sums of money damages and sought upon an injunction bond given in an costs that shall be adjudged against it,' etc.; equity cause in a suit in the circuit court and, secondly, it is contended that as the of the United States for the central division injunction bond was given in a proceeding of the western district of Missouri. The pending in the United States court, the railway company was complainant in the damages must be fixed and determined aoequity cause, and Elliott was defendant. The cording to the rules and practice of the Fedcircuit court of the United States, as the re-eral courts; that attorneys' fees are not sult of a mandate of the circuit court of appeals, entered an order dissolving the injunction, and thereupon this action was commenced. The damages which it was alleged were embraced in the condition of the bond were averred to consist of payments made for attorneys' fees, traveling and other similar expenses of the plaintiff, asserted to have been disbursed during the course of the litigation in the United States court.

The answer consisted of a general denial, and alleged that the equity suit in which the bond was given was made necessary to enable the defendant to make its defense to an action at law, which had prior to the equity suit been brought against the railway company by Elliott. The cause was tried by the court without a jury. It appeared on the trial that in dismissing the bill in the equity cause the statutory allowance to attorneys and other costs had been taxed, and paid by the complainants in the equity cause in the United States circuit court. No objection was interposed at the trial to evidence introduced for the plaintiff as to the value of attorneys' services and the other sums disbursed for the expenses alleged in the petition. At the close of the trial the court, over the objection of the defendant, declared the law to be that the plaintiff was entitled to recover his reasonable personal expenses and reasonable attorneys' fees incurred for the services of attorneys in procuring the dissolution of the injunction. The following, among other prayers asked by the defendant, were refused:

"2. The court declares the law to be that the plaintiff is not entitled to recover as damages on the injunction bond sued on any sum which he may have paid out or become liable for as attorneys' fees."

"5. The court declares the law to be that

there considered elements of damage in suits on injunction bonds, and that therefore our state courts should apply the same rule in suits on bonds given in the Federal courts; and thirdly, it is insisted that the trial court erroneously allowed as damages at torneys' fees for defending the entire case that the injunction was merely incidental to the principal case, and no attorneys' fees were paid to secure its dissolution." [77 Mo. App. 659.]

A motion for a rehearing was thereafter filed, in which, among other things, it was contended that the cause involved a Federal question, "for the reason that the controver sy in this suit arises under the authority of the United States, and under the laws of the United States governing and applicable to United States courts," and the court was asked in the event that it should refuse to grant a rehearing, to transfer the case to the supreme court of the state of Missouri, "for the reason that a Federal question is involved, and because the subject of the controversy of this suit arises under the authority of the United States and under the exercise of such authority, and under the laws of the United States governing and controlling the courts of the United States and the proceedings therein." The motion es for a rehearing having been overruled, it appears from a stipulation contained in the record that an application was made to the supreme court of the state of Missouri for a writ of prohibition against the judges of the said Kansas City court of appeals to restrain the further exercise of jurisdiction in the cause, and to require the record and proceedings to be certified to the supreme court. This application was denied. 154 Mo. 300, 55 S. W. 470.

Thereupon the present writ of error was

*534

allowed, and the record of the cause was | tually considered and decided by the state brought here from the Kansas City court of appeals.

Mr. George P. B. Jackson for plaintiff in error.

Mr. W. M. Williams submitted the case for defendant in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

The proposition relied upon to secure the reversal of the judgment below is that the state court erroneously allowed, as an element of damage upon an injunction bond given in a court of the United States, the sum of alleged counsel fees for procuring a dissolution of the injunction, and that as such fees under the rule prevailing in the equity courts of the United States are not properly allowable, therefore the state court denied an immunity asserted in favor of the defendant below and arising from an authority exercised under the United States. We are at the outset met by an objection that there is no jurisdiction to review the judgment of the Kansas City court of appeals. It is contended on behalf of the defendant in error that the Federal question relied upon was not raised below, and therefore is not reviewable here.

court, the right to review exists. Mallett v. North Carolina, 181 U. S. 589, 592, 45 L. ed. 1015, 1017, 21 Sup. Ct. Rep. 730.

Now, it plainly appears that the Kansas City court of appeals considered that there was presented to it for decision the question whether, in an action brought in a state court on an injunction bond given in a court of the United States, the state court was bound to apply to such a bond the rule prevailing in the courts of equity of the United States, viz., that attorneys' fees are not a proper element of damage. We say this is undoubted, since the opinion of the Kansas City court of appeals recites that such was the contention, and the court proceeded to consider and decide it. That this contention involved a claim of immunity under an authority exercised under the United States, reviewable in this court, we have recently decided in Tullock v. Mul vane, 184 U. S., ante, p. 372, 22 Sup. Ct. Rep. 372. True it is that the Kansas City court of appeals held, contrary to the rule announced in the Tullock Case, that the state court was not bound to apply the rule of damages "prevailing in the courts of the United States, and in effect while so concluding decided that the claim that the bond should be enforced according to the rule prevailing in the courts of the United States involved no Federal question, but the fact that the state court, whilst deciding the Federal question, erroneously held that it was not a Federal one, does not take the case out of the rule that, where a Federal question has been decided below, jurisdiction exists to review. The result of the contrary doctrine would be this, that no case where the question of Federal right had been actually decided could be reviewed here if the state court, in passing upon the question, had also decided that it was nonFederal in its character. The assertion that a Federal right was not raised below is therefore without merit.

It is, however, insisted that as the writ of error in this case was directed to the Kansas City court of appeals there is no jurisdiction, because if there was a Federal question presented that court was not, under the Constitution of the state of Missouri, the highest court of the state in which a decision on such question could have been had.

The general rule undoubtedly is that those Federal questions which are required to be specially set up and claimed must be so distinctly asserted below as to place it beyond question that the party bringing the case here from the state court intended to and did assert such a Federal right in the state court. But it is equally true that even although the allegations of Federal right made in the state court were so general and ambiguous in their character that they would not in and of themselves necessitate the conclusion that a right of a Federal nature was brought to the attention of the state court, yet if the state court in de ciding the case has actually considered and determined a Federal question, although arising on ambiguous averments, then, a Federal controversy having been actually decided, the right of this court to review obtains. F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 660, 41 L. ed. 1149, 1153, 17 Sup. Ct. Rep. 709. All that is essential is that the Federal questions must be presented in the state court in such a The Kansas City court of appeals was manner as to bring them to the attention of created by an amendment to the Constituthat tribunal. Chicago, B. & Q. R. Co. v. tion of Missouri adopted in 1884. 1 Mo. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Rev. Stat. 1899, p. 92. By 4 of the Sup. Ct. Rep. 581. And of course where it amendment the said court was given the is shown by the record that the state court same jurisdiction over lower courts within considered and decided the Federal ques- certain territory-embraced within which tion, the purpose of the statute is subserved. was Cooper county-as was possessed by And so controlling as to the existence of the the St. Louis court of appeals. As providFederal question is the fact that it was ac-ed by a prior Constitution, that of 1865, and tually considered and decided by the state continued by the Constitution of 1875, the court, that it has been held, although the St. Louis court of appeals was a court of general rule is that the raising of a Federal general appellate jurisdiction, but its judg question in a petition for rehearing in the ments were not final in certain cases, among highest court of the state is too late, yet which were: a, cases where the amount in when a question is thus raised, and it is ac-dispute, exclusive of costs, exceeded the sum

289.

of $2,500; b, cases involving the construc- whether attorneys' fees could be allowed uption of the Constitution of the United on the bond given in the Federal court had States or of the state of Missouri; c, cases not been raised, but because, although that where "the validity of a treaty or statute question had been raised and been decided, of or authority exercised under the United it was not one of the class of questions withStates is drawn in question;" as well as in in the purview of the exclusive jurisdiction other enumerated cases, not necessary to be of the supreme court of the state. And particularly referred to. In such cases, this seems to us to be the view held by the where the jurisdiction of the St. Louis court supreme court of Missouri, when, in conseof appeals was not final, the judgment of quence of the refusal to transfer the cause the St. Louis court of appeals was reviewa- to it, its superintending power over the ble by the supreme court of Missouri. Ibid. Kansas City court of appeals was invoked art. 6, § 12, p. 87. through the medium of the application for By the amendment to the Constitution of writs of prohibition and certiorari. We so 1884, by which the Kansas City court of conclude, because, although in its elaborate appeals was created, in cases where the ac- opinion overruling the application for the tion of the St. Louis court of appeals had writs named, the supreme court declared been theretofore reviewable by the supreme that the question of the power of the state court of Missouri, it was provided that the court to award attorneys' fees on the inSt. Louis court of appeals should no longer junction bond given in a court of the Unithave appellate jurisdiction, but that writs ed States, contrary to the rule of damages of error, in such cases, should run directly prevailing in the courts of the United from the supreme court to the trial courts, States, had been raised in the case and had and this provision was made applicable to been decided by the Kansas City court of the Kansas City court of appeals which the appeals, the writs of prohibition and ceramendment created. By the amendment in tiorari would not be allowed, because such question superintending control over the a question was not within the appellate jutrial courts in such cases was conferred up-risdiction of the supreme court of Missouri, on the supreme court. Ibid. § 5, p. 93. It but was within the jurisdiction of the lower thus resulted that the Kansas City court of appellate court. After fully stating the appeals, within the area of territory over contention below and its decision by the which its jurisdiction extended, had no ap- Kansas City court of appeals, the supreme pellate jurisdiction in cases where the court of Missouri said: amount in dispute, exclusive of costs, exceeded $2,500, and where the cases involved the construction of the Constitution of the United States or of the state, and cases where was drawn in question the validity of a treaty or statute of or authority exercised under the United States, and in other cases not necessary to be mentioned.

"We fail to discover from the record, any. where, how 'the validity of a treaty or statute of, or authority exercised under, the United States, is drawn in question,' or that a Federal question may be said to have been involved in the case."

In other words, as the exclusive appellate jurisdiction of the supreme court of By the amendment to the Constitution of Missouri over cases which, by the amount 1884, the supreme court of Missouri was ex-involved, would otherwise have gone to the pressly, moreover, given general superintending control over the courts of appeal, by mandamus, prohibition, and certiorari. Ibid. § 8, p. 94.

After the Kansas City court of appeals had affirmed the judgment of the Cooper county circuit court, the railway company filed a motion for a rehearing, and prayed therein that in the event a rehearing was not granted the case should be transferred to the supreme court of Missouri. The motion for the transfer of the case to the supreme court was pressed upon two grounds, the second of which was, in substance, that the decision of the cause involved a Federal question, of which the supreme court of Missouri should take exclusive cognizance, because of its appellate jurisdiction, "in cases where the validity of a treaty or statute of or authority exercised under the United States is drawn in question."

The court, in overruling this motion, necessarily decided that the case came within its appellate jurisdiction, and not within the exclusive appellate power conferred by the Constitution on the supreme court of the state. This doubtless rested upon the predicate upon which the court had based its opinion, which was not that the issue 22 S. C.-29.

Kansas City court of appeals, was conferred only in special cases, among other cases involving the construction of the Constitution of the United States and cases where "the validity of a treaty or statute of or authority exercised under the United States is drawn in question," the court held that as the validity of the bond given in the circuit court of the United States was not ques tioned, no claim made by the defendant of immunity under an authority exercised under the United States was embraced within the exclusive appellate jurisdiction conferred by the Constitution upon the supreme court of Missouri, and therefore such question had been properly determined by the Kansas City court of appeals. We are constrained to this construction of the opinion of the learned court from the fact that it elaborately discusses and demonstrates that the defense of immunity from liability for attorneys' fees under the bond given in a court of the United States was not an attack on the validity of the bond, and therefore not within the cognizance of the supreme court of Missouri, and from the further fact that in the course of the opinion the court said:

"Neither the rules, the practice or pro

cedure, nor the mode and manner of admin- | claim of the absence of jurisdiction is withistering the law in the United States court, out foundation. applicable to the liability of bondsmen on an injunction bond given in that court, can jurisdiction, we come to the merits of the Having thus disposed of the question of in anywise be drawn in question, so as to case. present a Federal question, in a suit in aen in the opinion in Tullock v. It suffices to say, for the reasons giv state court on the bond, when its validity, as in the case of Elliott v. Missouri, K. & T. R. Co., begun in the Cooper county circuit court, and now pending on appeal in the Kansas City court of appeals, is admitted, and where no question as to the court's authority to order the bond as given is or was made by the relator."

fore referred to, 184 U. S. 497, ante, p. 372, Mulvane, be22 Sup. Ct. Rep. 372, that there was error committed by the Kansas City court of appeals in affirming the action of the trial court in allowing, in the judgment by it rendered, attorneys' fees as an element of damage upon the injunction bond contrary to the controlling rule on this subject enunciated by this court, by which the courts of the United States are governed in requiring the execution of such instruments.

of appeals must be reversed, and the cause The judgment of the Kansas City court remanded to that court, with directions for further proceedings in conformity with this opinion."

It results, therefore, under the view we take of the opinion of the supreme court of Missouri, the court decided that as the case presented merely a claim of immunity under an authority exercised under the United States, and did not involve, to quote the language of the Missouri Constitution, the drawing in question "the validity of an authority" so exercised, therefore, the Kansas City court of appeals was vested under the Constitution and laws of Missouri with final jurisdiction. But if, however, we were to give to the opinion of the supreme court W. C. LYKINS and E. W. W. Lykins, Plife.

of Missouri the contrary construction, the finality of the judgment of the Kansas City court of appeals in this case would be none the less apparent. It is manifest, we conceive, from the opinion of the supreme court of Missouri, that if it had been deemed that a Federal question, not within the cognizance of the Kansas City court of appeals had been decided by that court, the superintending power of control conferred by the state Constitution on the supreme court of Missouri would have been exerted for the purpose of preventing the Kansas City court of appeals retaining jurisdiction of the cause. If, then, the action of the supreme court of Missouri can be held not to have been rested on the phraseology of the Missouri Constitution, including within the exclusive appellate power of the Supreme Court of Missouri not claims of immunity arising from an authority exercised under the United States, but only cases where was

drawn in question the validity of an authority exercised under the United States, then the necessary effect of the action of the supreme court of Missouri was this, that because it held to the opinion that it was impossible for a Federal question ever to arise from a claim of immunity resulting from the exercise of an authority under the United States in the giving of an injunction bond in the courts of the United States, therefore, under the Constitution and laws of Missouri, the action of the Kansas City court of appeals was final.

It being then demonstrated that whatever view may be taken of the opinion of the supreme court of Missouri, that court necessarily decided that the Kansas City court of appeals, in passing upon the claim of immunity, was the final court in Missouri where such question could be decided, it follows that the writ of error properly ran to the Kansas City court of appeals, and the

And it is so ordered.

in Err.,

v.

(184 U. S. 169)

MRS. R. McGRATH.

Public lands-restriction on alienation by
Indian patentee-retroactive effect of com-
sent by Secretary of Interior.
Consent of the Secretary of the Interior to a
conveyance by an Indian patentee whose pat-
ent prohibited allenation by him or his heirs
without such consent may be given after the
death of the Indian grantor, and when so
given is retroactive in its effect, and relates
back to the date of the conveyance, so as to
cut off any claim of the heirs of such grantor
to the land.

[No. 90.]

Argued and Submitted January 13, 1902.
Decided February 24, 1902.

United States for the District of Kansas to review a judgment for defendant im an action of ejectment. Affirmed.

'N ERROR to the Circuit Court of the

Statement by Mr. Justice Brewer: Under and by virtue of the provisions of treaty between the United States of America and the Kas-kas-kia, Peoria, and cluded on the 30th day of May, 1854, proother confederated tribes of Indians, comclaimed August 10, 1854 (10 Stat. at L 1083), and an act of Congress approved 82), the southeast quarter of section No. March 3, 1859 (11 Stat. at L. 431, chap. fifteen (15), in township No. seventeen (17), south of range No. twenty-three (23) cust, in the territory, now state, of Kansas, and other lands, were 1859, conveyed by the United States of on November 1, America by letters patent to Ma-cha-co-meyah, or David Lykins, a member of the said Peoria tribe of Indians, being "Peoria Re

serve No. 14." The patent contained the following provision: "That said tracts shall never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior for the time being." On June 3, 1864, the patentee, David Lykins, conveyed the land to one Baptiste Peoria, by deed of that date, which deed was on March 10, 1865, presented to the Secretary of the Interior, and by him approved. Intermediate the making of the deed and the approval of the Secretary of the Interior, to wit, on August 14, 1864, the patentee died, leaving the two plaintiffs in error (plaintiffs below) as his sole heirs. This action in ejectment was commenced by them on March 18, 1899, in the cirucit court of the United States for the district of Kansas against the defendant, in possession and claiming title under the deed to Baptiste Peoria. A demurrer to an amended petition was sustained, and judgment entered in favor of the defendant, whereupon this writ of error was sued out.

Messrs. William M. Springer and Robinson, Bowler & McCluer for plaintiffs in error.

Messrs. W. C. Perry, D. B. Holmes, and Frank M. Sheridan for defendant in er

ror.

Mr Justice Brewer delivered the opinion of the court:

It is contended by the plaintiffs that the deed from David Lykins, not having been approved before his death, became thereby an absolute nullity; that title immediately vested in them, free from any claim of the grantee in the deed; that they never asked for the approval of the Secretary of the Interior; never consented that it should be given; never in any way ratified or assented to the deed of their ancestor, and that the Secretary was without any authority after the death of the patentee to approve the latter's deed.

of the execution of the deed, and made it valid as of that date. In other words, the antecedent approval of the President was not a condition of the validity of the deed. It was enough that he approved what had been done. It is true that it does not appear that the Indian grantor had died intermediate the making of the deed and the approval of the President (and in this respect that case differs from the present), but the grantee from the Indian had died during such interval, and only by way of relation could the action of the President be considered as making effective an otherwise void deed to a dead man. That case came before this court a second time (Lomax v. Pickering, 173 U. S. 26, 27, 43 L. ed. 601, 602, 19 Sup. Ct. Rep. 416, 417), and in the opinion then filed the scope of the prior de cision was thus stated: "The case was reversed by this court upon the ground that the approval subsequently given by the President to the conveyance was retroactive, and was equivalent to permission before execution and delivery."

It must therefore be considered as settled that the consent of the Secretary of the Interior to a conveyance by one holding under a patent like the present may be given after the execution of the deed, and when given is retroactive in its effect and relates back to the date of the conveyance.

But the applicability of the doctrine of relation is denied on the ground that the interests of new parties, to wit, the plaintiffs, have sprung into being intermediate the execution of the conveyance and the approval of the Secretary. But one of the purposes of the doctrine of relation is to cut off such interests, and to prevent a just and equitable title from being interrupted by claims which have no foundation in equity. The doctrine of relation may be only a legal fiction, but it is resorted to with the view of accomplishing justice. What was the purpose of imposing a restriction upon the Indian's power of convey. The 11th section of the act of 1859, su- ance? Title passed to him by the patent, perseding in this respect the treaty of 1854, and but for the restriction he would have contained a general provision in reference had the full power of alienation the same ase to restricted patents to Indians in Kansas, any holder of a fee-simple title. The restric that the Secretary of the Interior should tion was placed upon his alienation in order cause them to be issued "upon such condi- that he should not be wronged in any sale tions and limitations, and under such he might desire to make; that the consider. guards or restrictions, as may be prescribed ation should be ample; that he should in by said Secretary," and in pursuance of this fact receive it, and that the conveyance section the restriction referred to was should be subject to no unreasonable condiplaced in this patent. That the consent of tions or qualifications. It was not to prethe Secretary was effective, though given vent a sale and conveyance, but only to after the execution of the deed, was deter-guard against imposition therein. When mined in Pickering v. Lomax, 145 U. S. 310, the Secretary approved the conveyance it 36 L. ed. 716, 12 Sup. Ct. Rep. 860. In that was a determination that the purposes for case the patent to the Indian contained a stipulation, authorized by treaty, that the land should not be conveyed "to any person whatever, without the permission of President of the United States." A deed was made by the Indian holder of the title on August 3, 1858, which was approved by the President on January 21, 1871, nearly thirteen years thereafter, and it was held that the approval related back to the time

which the restriction was imposed had been fully satisfied; that the consideration was ample; that the Indian grantor had received it, and that there were no unreasonable stipulations attending the transaction. All this being accomplished, justice requires that the conveyance should be upheld, and to that end the doctrine of relation attaches the approval to the conveyance and makes it operative as of the date of the latter.