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Brighton Railroad did not accompany the The principle governing these decisions, transfer of its property to the Rochester so plain that it needs no reasoning to sup. Railroad is reached by another and entirely port it, is that those who seek and obtain independent course of reasoning, based upon the benefit of a charter of incorporation a consideration of the law under which the must take the benefit under the conditions Rochester Railroad was incorporated. That and with the burdens prescribed by the laws was the general incorporation law of 1884. then in force, whether written in the Every corporation incorporated under it was constitution, in general laws, or in the made “subject to all the liabilities imposeil charter itself. The Rochester Railroad, by the act” ($ 1), and directed to keep the therefore, having accepted its charter under street surface about and between its tracks a law which imposed upon it the duty of “in permanent repair” (§ 9), which, as held | laying pavements, is bound to perform that by the state court, includes the duty of duty, even in respect of tracks which, while laying such pavement as is in controversy owned by a predecessor in title, would have here. We follow the construction by that been exempt 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.

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; Norton Railroad has ceased to exist as a 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; within the provisions of the act of 1879. Grand Rapids & I. R. Co. v. Osborn, 193 U. Then all the stock of the latter corporation S. 17, 48 L. ed. 598, 24 Sup. Ct. Rep. 310; was acquired by exchange of shares of stock San Antonio Traction Co. v. Altgelt, 200 U. of the former corporation. Then a certifiS. 304, 50 L. ed. 491, 26 Sup. Ct. Rep. 261. cate of the transfer of stock was filed with

the secretary of state.

Thereupon, by A

PPEAL from the Circuit Court of the operation of the law, the “estate, property, United States for the District of Idaho rights, privileges, and franchises” of the to review a decree sustaining the validity of Brighton Railroad vested in the Rochester a prior decree set up in the bill as the Railroad, to be thereafter controlled by the basis of title in suit. Dismissed for want Rochester Railroad in its own corporate of jurisdiction. name. The law does not expressly dissolve the selling corporation, but it leaves it Statement by Mr. Justice Day: without stock, officers, property, or fran The defendant in error, complainant be. chises. A corporation without shareholders, low, brought suit in the circuit court of the without officers to manage its business, United States for the district of Idaho without property with which to do business, against the Empire State-Idaho Mining & and without the right lawfully to do busi- Developing Company and the Federal Mining ness, is dissolved by the operation of the & Smelting Company, appellants herein. The law which brings this condition into exist- bill, filed July 27, 1904, alleged diversity of ence. Maine C. R. Co. v. Maine; Keokuk & citizenship as the ground of jurisdiction, W. R. Co. v. Missouri; and Yazoo & M. and averred that the Empire State-Idaho Valley R. Co. V. Adams, ubi supra.

Mining & Developing Company, the Federal The judgment of the Supreme Court of Mining & Smelting Company, and complainNew York is, therefore, affirmed.

ant are the owners and possessors, as ten

ants in common, of the Skookum mine and Mr. Justice White concurs in the result. mining claim and the ores therein contained,

situated in Yreka mining district, Shoshone county, Idaho. The complainant was al.

leged to be the owner of an undivided one. EMPIRE STATE-IDAHO MINING & DE-eighth interest in the fee thereof, and the

VELOPING COMPANY and Federal Min- Empire State-Idaho Mining & Developing ing & Smelting Company, Appts.,

Company the owner of the undivided seven
V.
KENNEDY J. HANLEY.

eighths of said mine and claim.

There are other allegations, not neces. Appeal-direct review of decree of circuit sary to be here set out, and then, in the court--when jurisdiction is in issue. eighth paragraph of the bill, it is alleged:

1. A case cannot be brought up to the “8. That prior to May 17, 1902, the deSupreme Court of the United States by fendant Empire State-Idaho Mining & De. direct appeal from a Federal circuit court, veloping Company extracted from said mine, under the act of March 3, 1891 (26 Stat. at through said tunnels, large quantities of L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 488), § 5, as one in which the jurisdiction ore, and sold the same, and received all of of the court is in issue, where the juris- the proceeds thereof, and paid no part of the diction challenged is not that of the court same to complainant; that complainant rendering the decree from which the appeal brought suit on March 19, 1899, in the is taken, but is that of the court which ren- United States circuit court, district of dered a former decree, which is set up in Idaho (a court having jurisdiction of the the bill as the basis of the title in suit. parties and subject-matter), against said deAppeal-direct review of decree of circuit fendant and Charles Sweeny and F. Lewis court-case involving construction or ap- Clark, to recover his share of the proceeds, plication of Federal Constitution.

and to quiet his title to said mine and ore 2. A case in which the contention is bodies; and in said suit recovered a decree made that the decree which is the basis of against said defendant Empire State-Idaho suit is void as violating the right, under the Mining & Developing Company, duly given Federal Constitution, to a jury trial and to and made in said United States circuit due process of law, does not involve the

court at Moscow, Idaho, on or about Novemconstruction or application of such Constitution, within the meaning of the act of ber 17, 1902, for the sum of one hundred March 3, 1891, § 5, authorizing direct ap

seventy-five thousand dollars ($175,000), peals from the circuit or district courts to and which decree quieted the title of this the Federal Supreme Court, where the real complainant to said one-eighth interest in issue as to such prior decree was whether said claim and ore bodies, a certified and it was res judicata between the parties, or, attested copy of which decree was, on the as is contended by the appellants, was ren- | -day of November, 1902, recorded in Shodered without jurisdiction.

shone county, Idaho, and the amount de[No. 206.]

creed to complainant therein remains un

paid 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

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 The bill avers the extraction of a large such ore bodies, and the complainant was amount of ore in which the complainant al- out of possession thereof, and an action of leges he is entitled to an interest, and that law alone would lie in the Federal court the defendants the Empire State-Idaho Min- to determine title to such ore bodies, and ing & Developing Company and the Federal | that the defendant therein, being the deMining & Smelting Company deny the title fendant Empire State-Idaho Mining & Deof the complainant to the mining and ore veloping Company, had a right, under the bodies. It further avers that the defend laws and Constitution of the United States, ants are appropriating the ores mined to to a trial by jury of the question of title to their own use, and, after other allegations said ore bodies, and defendants allege that not necessary to be set out, prays for an so much of the decree in said action as injunction restraining the defendants from undertook or purported to quiet title to extracting ore from the Skookum mine such ore bodies was and is absolutely void pending the suit, and for an accounting for as to the Empire State-Idaho Mining & Dethe ores extracted from the mines and claim veloping Company, because the same constisince May 17, 1902.

tuted and was in fact an attempt to deprive By the amended answer the defendants, it of its property without due process of among other defenses, set up that the ores law within the meaning of article 5 of the which they are extracting belong to a vein amendments to the Constitution of the or lode not having its apex within the United States, and because the same constiSkookum mining claim, but belonging to a tuted an adjudication of its property rights vein having its apex within the lode mining without its consent by the court without claim lying to the north of the Skookum a jury, contrary to the provisions of article claim and a part of the San Carlos claim, 7 of the amendments to the Constitution of owned by the defendants, and deny that the the United States. defendants are mining any ores in which the 7. The defendants attach hereto, marked complainant has any right, and avers that Exhibit A, and pray that the same may be the claim thereto is without merit; and, taken as a part of this answer, copies of coming to answer the eighth paragraph of the complaint, answer, and replication in the bill, setting up the decree upon which the action referred to in the eighth parathe plaintiff relied for his title, the de- graph in the bill, and allege that the same fendante set up paragraphs 6 and 7: constituted the sole pleadings in the said

“6. Answering paragraph eighth of the action, and, together with the evidence, conbill, these defendants admit that an action stituted the sole basis for the final decree was brought against the parties named in rendered therein, a copy of which is at. said paragraph as alleged therein, but deny tached hereto and marked Exhibit B, and that said action was brought to quiet title made a part hereof; that after the replito said ore bodies, or that the decree therein cation in said cause was filed testimony was did in fact quiet title to said ore bodies or to taken before an examiner, on the part of an undivided one-eighth interest therein in the complainant, in support of the allegathe complainant, and allege further con- tions contained in the bill, to wit, the alcerning said decree in said action that the legations that the defendants Clark and court, in the said action, had no jurisdiction Sweeney had acquired the one-eight interto determine title to the said Skookum est in the Skookum mine from the commine or to the ore bodies lying within or plainant by fraud, covin, and deceit, and beneath the said mining claim, for the testimony was introduced by the defendants reason that the bill of complaint in the said contradicting the testimony of the comaction does not purport to be an action to plainant, and tending to support the afquiet title to the said mine or ore bodies, firmative allegations of the answer, and no nor does the same make a case for the quiet- testimony was offered or taken, either for ing of title thereto, nor is it such as to complainant or defendants, concerning the authorize the decree rendered in said action, said one-eighth interest except the evidence purporting to quiet the title to said mine for and against fraud, covin, and deceit, as and ore bodies, and for the further reason before alleged.

before alleged. Thereupon the said cause alleged by defendants to be a fact, that no was submitted to the court for decision, and opportunity was given to the defendants the said circuit court entered a decree in therein to litigate the title to said ore favor of the defendants therein. Therebodies before the decree in said action pur- upon complainant in that suit appealed to

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 plead The complainant below filed exceptions to ings and the evidence before it, found that this amended answer, in which he averred the allegations of the bill relating to the that, in the former decree, the title to the fraud in procuring title to the one-eighthore bodies in question was quieted, and that interest claimed by the said Hanley were the issues made in that case were within the sustained by the evidence, and the decree jurisdiction and power of the court to dewas reversed and the cause sent back to the termine, and that the question of the right circuit court for the further proceedings and title to one eighth of the Skookum in accordance with the opinion. Thereupon mine and mining claim and ores therein an order was made by the circuit court contained had been determined in the fordirecting an accounting, and evidence was mer suit in favor of the complainant, and the introduced by complainant to show the said question had become res judicata in amount and value of ores extracted from the a court having jurisdiction of the parties Skookum mine prior to May, 1902, by the and the subject matter. defendants in said suit. That defendants in Upon hearing the exceptions to the the said action thereupon offered to prove amended answer, they were sustained and that the said ore so extracted from under the answer held insufficient. Thereupon the neath the Skookum mine prior to that defendants, averring that the court was in time was part of the vein having its apex in error and that the said amended answer the said San Carlos claim, above referred constituted a defense, declined to plead to, owned by defendants, and that the said further, and elected to stand upon the San Carlos claim was so located that its amended answer. The complainant thereextralateral rights included the ore bodies upon moved the court for a final decree for from which the said ores were extracted. one eighth of the amounts stated in paraThe said offer to prove the said fact was graph 9 of the answer to have been mined thereupon denied by the said court, acting as therein stated. A final decree was renunder the order of the United States circuit. dered accordingly, and thereupon a direct court of appeals for the ninth circuit, in a appeal was taken to this court. certain mandamus proceeding brought in said court to test the question; that defend Messrs. George Turner and F. T. Post for ants in the said action thereafter, and at appellants. all times, contended and insisted that they Mr. Myron A. Folsom for appellee. had a right to show in the accounting that the ores taken from under the Skookum

Mr. Justice Day delivered the opinion of claim were a part of the vein apexing in the the court: San Carlos claim, of which the defendants In the brief and argument of the learned were the owners, and that the court was counsel for the appellants it is said: “The without jurisdiction to render a decree in sole question in the case is whether, on the the said action quieting title to the Skookum facts set up and pleaded in the answer, mine, or to the ore bodies referred to in the there was jurisdiction in the United States bill of complaint, but its contentions and circuit court in the former suit to render objections and were overruled and the de- the judgment quieting in the complainant, cree averred by the complainant was ren Hanley, title to one eighth of all the ore dered notwithstanding such protests and bodies found within the boundaries of the objections; and defendants aver that the Skookum mining claim. The lower court said decree purporting to quiet title in said thought the answer failed to show want of ore bodies was rendered without evidence jurisdiction, and sustained complainant's exbeing taken upon the said contention of the ceptions." defendants, and without any evidence what. A preliminary question for examination ever being heard which threw any light in this court, although not made in arguupon the contention; and said decree was ment by counsel, is whether this court has thereafter, upon appeal to the United States jurisdiction of this case by direct appeal circuit court of appeals for the ninth circuit, from the judgment rendered in the circuit affirmed, the court in said cause holding as court of Idaho. It is apparent from the ground for its action that the bill of com- statement preceding this opinion that the plaint niade a cause for quieting title to extent and effect of the adjudication in the one-eighth interest in the said Skookum the first case, wherein the complainant almine and to the ore bodies in the limits leges title was decreed to him, was the real thereof, and that the defendants in said controversy between the parties. The comcause, having failed to plead title to the plainant contended that the court in the ore bodies in themselves by virtue of 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 Re Lennon, supra, was a proceeding in belonged to another mine, the San Carlos, habeas corpus to discharge a party held upthe property of the defendants, by reason on an order for imprisonment for failing of the fact that they are of a vein which to pay a fine imposed for contempt. The has its apex in the San Carlos mining claim, petitioner alleged that the circuit court had and not in the Skookum; and that the de- no jurisdiction of the case in which the orcree in the former suit was without juris- der of injunction had been issued, for viodiction in so far as it undertook to quiet lation of which the petitioner was alleged title for such ore bodies, because the plead to be guilty of contempt; and that it had ings in that suit made no case for such de- no jurisdiction either of the subject-matter cree.

or of the person of the petitioner. The apIf this case can come here by direct ap- plication being denied and direct appeal peal it must be because it is within 5 of being taken to this court, it was held that the court of appeals act 1891, providing for it would not lie under 5, act of March direct appeals in certain cases from the cir- 3, 1891, because the jurisdiction of the circuit court to this court. 26 Stat. at L. 827, cuit court of the petition for habeas corpus chap. 517, § 5, U. S. Comp. Stat. 1901, p. was not in issue, nor was the construction 488. It cannot be brought directly here as or application of the Constitution involved. a case in which the jurisdiction of the court of the latter phase of the case Mr. Chief is in issue; for the jurisdiction challenged Justice Fuller, speaking for the court, said: is not that of the court rendering the de "Nor can the attempt be successfully cree from which this appeal is taken, but is made to bring the case within the class of that of the court rendering the former de- cases in which the construction or applicacree, which is set up in the complaint as the tion of the Constitution is involved in the basis of the title sued upon. Re Lennon, sense of the statute, on the contention that 150 U. S. 393, 37 L. ed. 1120, 14 Sup. Ct. the petitioner was deprived of his liberty Rep. 123.

without due process of law. The petition If the case is properly here, it must be does not proceed on any such theory, but because it is one which involves the con- entirely on the ground of want of jurisdicstruction or application of the Constitution tion in the prior case over the subjectof the United States. It has been repeated matter and

the person of peti. ly held that it is only when the Constitu- tioner, in respect of inquiry into which tion of the United States is directly and the jurisdiction of the circuit court was necessarily drawn in question that such an sought. If, in the opinion of that court, the appeal can be taken, and the case must be restraining order had been absolutely void, one in which the construction or application or the petitioner were not bound by it, he of the Constitution of the United States is would have been discharged, not because he involved as controlling. We think this case would otherwise be deprived of due procis not of that character. It is evident that ess, but because of the invalidity of the prothe real issue as to the former judgment ceedings for want of jurisdiction. The opinwas whether it was res judicata between ion of the circuit court was that jurisdiction the parties, or, as contended by the appel in the prior suit and proceedings existed, lants, rendered without jurisdiction. The and the discharge was refused; but an apcourt, in deciding against the appellants, peal from that judgment directly to this decided that the court had jurisdiction, and court would not, ther-fore, lie on the ground that the former decree was conclusive. that the application of the Constitution was This decision does not necessarily and di- involved as a consequence of an alleged errectly involve the construction or appli- roneous determination of the questions accation of the Constitution of the United tually put in issue by the petitioner.” States. In World's Columbian Exposition v. In Carey v. Houston & T. C. R. Co. 150 United States, 6 C. C. A. 71, 18 Ú. S. App. U. S. 170, 37 L. ed. 1041, 14 Sup. Ct. Rep. 159, 56 Fed. 657, Mr. Chief Justice Fuller, 63, in which a bill in equity had been filed speaking for the court, said: "Cases in which in order to impeach and set aside a decree the construction or application of the Con- of foreclosure on the ground of fraud and stitution is involved, or the constitu- want of jurisdiction in the foreclosure suit, tionality of any law of the

of the United it was held that no case for appeal directStates is drawn in question, are cases which ly to this court was made as one that in: present an issue upon such construction or volved the construction or application of application or constitutionality, the deci- the Constitution of the United States. In sion of which is controlling; otherwise that case Mr. Chief Justice Fuller, delivering every case arising under the laws of the the opinion of the court, said: United States might be said to involve the "It is argued that the record shows that

over

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