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& Ct. 175, both holding where two complete defenses were put in in lower court, one involving a Federal question the other not, and Judgment for defendant was given on both, the Supreme Court will affirm judgment below without considering Federal question; to the same effect are Eustis v. Bolles, 150 U. S. 366, 37 L. 1112, 14 S. Ct. 182, Rutland Ry. Co. v. Cent. Ry. Co., 159 U. S. 641, 40 L. 289, 16 S. Ct. 116, and Harrison v. Morton, 171 U. S. 47, 18 S. Ct. 745, where, under rule, Supreme Court refused to review judgment of lower courts; Eureka v. Wilson, 15 Utah, 60, 48 Pac. 43, and Ogden City v. Crossman, 17 Utah, 71, 53 Pac. 987, applying rule to practice in State court. Approved, arguendo, in Given v. Wright, 117 U. S. 656, 29 L. 1024, 6 S. Ct. 910, and Crescent Stock Co. v. Butchers' Union, 120 U. S. 157, 30 L. 620, 7 S. Ct. 480. See note, 15 Am. St. Rep. 216.

Courts. Where question raised by Federal law has been erroneously decided in State court, and such decision was necessary to a final judgment in case, Supreme Court will reverse, and render judgment on the merits, or remand cause, as circumstances may require, p. 636.

Cited, arguendo, in Wilcox v. Luco, 118 Cal. 645, 62 Am. St. Rep. 309, 50 Pac. 760, 45 L. R. A. 586, and n., without special application. Miscellaneous.— Erroneously cited in Caillot v. Deetken, 113 U. S. 216, 28 L. 983, 5 S. Ct. 432, and Smith v. Dubose, 78 Ga. 433, 6 Am. St. Rep. 267, 3 S. E. 313. Cited incidentally in Lee v. Kaufman, 8 Hughes, 133, F. C. 8,191.

20 Wall. 643-645, 22 L. 446, RAILROAD CO. v. MARYLAND.

Courts. If record on error to Supreme Court of a State shows existence of a decision which gives Supreme Court jurisdiction, and shows also decision of a local question, writ will not be dismissed on motion in advance of hearing, p. 645.

Not cited.

20 Wall. 646–649, 22 L. 448, MATHEWS v. McSTEA.

Courts. Supreme Court has jurisdiction to review State court decision, where effect on a given contract, of the act of the executive in inaugurating the Civil War, was passed on, p. 649.

Cited in Bond v. Moore, 93 U. S. 594, 595, 23 L. 983, in holding the effect of the act of the executive in removing restrictions on commerce in States lately in insurrection presents a Federal question; Celluloid Mfg. Co. v. Goodyear Co., 13 Blatchf. 388, F. C. 2,543, in discussion as to subjects which give Federal courts jurisdiction. Distinguished in New York Life Ins. Co. v. Hendren, 92 U. S. 287, 23 L. 710, where the holding of State court was as to effect, under general public law, of sectional Civil War on contract, subject of suit.

Erroneously cited in Walker v. Beauchler, 27 Gratt. 524.

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20 Wall. 650-651, 22 L. 448, CADLE v. BAKER.

Banks and banking.— Debtors of national bank when sued by its receiver cannot inquire into legality of his appointment, p. 651.

Cited and principle applied in Metropolitan Bank v. Commercial Bank, 104 Iowa, 686, 74 N. W. 27, Barbour v. Bank, 45 Ohio St. 141, 12 N. E. 8, and Greenawalt v. Wilson, 52 Kan. 115, 34 Pac. 404, all holding the appointment of a receiver cannot be attacked in collateral proceedings; Sanger v. Upton, 91 U. S. 59, 23 L. 222, where like rule was applied to case of an assignee in bankruptcy; Stanton v. Wilkeson, 8 Ben. 361, F. C. 13,299, holding appointment of receiver by comptroller is presumed to be with approval of secretary of treasury. Cited incidentally in Bowden v. Morris, 1 Hughes, 380, F. C. 1,715, no special application.

20 Wall. 652, 22 L. 449, TREAT v. JEMISON

Courts.- Counsel having failed to assign error as is required by twenty-first rule of Supreme Court, judgment below was affirmed, p. 652.

Not cited.

20 Wall. 653-655, 22 L. 410, PARCELS v. JOHNSON.

Appeal and error.- Writ of error will not issue from Supreme Court in a cause where it is evident parties have not exhausted the power of inferior courts, p. 654.

Cited and reaffirmed in McComb v. Commissioners, 91 U. S. 2, 23 L. 185, holding judgment of Ohio Court of Common Pleas cannot be reviewed in United States Supreme Court; Baker v. White, 92 U. S. 179, 23 L. 481, holding judgment of Circuit Court, reversing judgment of District Court and ordering a new trial, is not such a final judgment as may be reviewed in Supreme Court; Davis v. Crouch, 94 U. S. 517, 24 L. 282, the Supreme Court has no power to review a judgment of the highest court in a State which reverses that of an inferior court and orders a new trial; Bostwick v. Brinkerhoff, 106 U. S. 4, 27 L. 74, 1 S. Ct. 16, holding judgment of reversal in State court, with leave for further proceedings in court of original jurisdiction, is not reviewable in United States Supreme Court; Great Western Tel. Co. v. Burnham, 162 U. S. 342, 40 L. 993, 16 S. Ct. 851, reaffirms rule; arguendo, in Lee v. Heath, 61 N. J. L. 251, 39 Atl. 729, where it was decided, writ of error lies from New Jersey Court of Appeals to State Supreme Court, to bring up judgment of latter, reversing judgment of Circuit Court and ordering further proceedings.

20 Wall. 655-670, 22 L. 455, LOAN ASSOCIATION v. TOPEKA. Municipal corporations. In general, debts contracted by mu nicipalities must be paid, if at all, out of taxes lawfully levied, p. 659.

Municipal corporations.- Authorization of county or city to incur debt by bond, carries with it right to levy such taxes as are necessary to pay the debt, unless there be some statute limiting the power of taxation, which repels such an inference, p. 660.

The following affirm and rely upon this holding: United States V. New Orleans, 98 U. S. 394, 25 L. 226, Scotland County Court v. United States, 140 U. S. 46, 35 L. 353, 11 S. Ct. 699, and Ralls County Court v. United States, 105 U. S. 736, 26 L. 1222, in affirming right of municipality to levy tax to meet principal and interest on bonds issued to pay for public works; United States v. County of Macon, 99 U. S. 589, 25 L. 332, where right to levy taxes being limited as to rate, court refused writ of mandamus to compel a levy at a greater rate than fixed by statute; Quincy v. Jackson, 113 U. S. 337, 28 L. 1003, 5 S. Ct. 546, holding act authorizing city to incur debt for purpose of subscribing to stock of railroad company, confers authority to levy taxes for payment of debt in excess of limit of taxation authorized by law for ordinary municipal purposes; Ex parte Parsons, 1 Hughes, 284, F. C. 10,774, and Sibley v. Mobile, 3 Woods, 539, F. C. 12,829, both reaffirm rule; United States v. New Orleans, 2 Woods, 233, F. C. 15,871, and Stryker v. Board, etc., 77 Fed. 574, 40 U. S. App. 583, both apply latter part of rule, and hold where legislature has provided a means of payment, this repels inference that resort to taxation was intended; United States v. Lincoln County, 5 Dill. 195, 198, F. C. 15,503, holding judgment creditors of counties in Missouri are entitled to the levy of a special tax to pay judgments obtained on railroad aid bonds, if county does not provide other means of payment; Goelet v. Elizabeth, 10 Fed. Cas. 527, Deuel County v. Bank, 86 Fed. 266, and United States v. Elizabeth, 25 Fed. Cas. 999, all holding writ of mandamus will issue to compel a city to levy tax to pay its legal debts; Savings, etc., Assn. v. Alturas County, 65 Fed. 683, United States v. Key West, 78 Fed. 91, and Sutherland Co. v. Evart, 86 Fed. 600, 601, all reafirm this rule; Peoria, etc., Ry. v. People, 116 Ill. 408, 6 N. E. 500, holding legislative authorization to contract debt for specific purpose carries with it power to levy taxes for payment thereof; State v. New Orleans, 34 La. Ann. 482, issuing mandamus to compel tax levy to pay interest on bonds authorized by law; Laughlin v. County Commissioners, 3 N. Mex. 302, 5 Pac. 820, holding tax to pay bonds issued under special act not invalidated by limitation on rate of taxation, although exceeding same; Oconto Water Co. v. Oconto, Wis. 80 N. W. 1116, reaffirms the rule. Approved, arguendo, in Breckinridge County v. M'Cracken, 61 Fed. 196, 22 U. S. App. 115, and Brooks v. Memphis, 4 Fed. Cas. 288. See note, 18 Am. Dec. 240, on mandamus to compel tax levy.

Distinguished in Raton Water Works v. Raton, 9 N. Mex. 88, 49 Pac. 904, holding one who contracts with town, chargeable with notice of statutes limiting its power to fulfill contract by taxation.

Municipal corporations.- Right of municipalities to contract is limited by their right to tax, and if in given case no tax can lawfully be levied to pay debt, the contract is void for want of authority to make it, p. 660.

Rule reaffirmed in Sutherland Co. v. Evart, 86 Fed. 602, 603. Cited and applied in Mayor v. Moog, 53 Ala. 565, 567, holding contract of city for acquirement of free wharf, void for lack of power to tax for payment thereof; City of Eufaula v. McNab, 67 Ala. 591, 42 Am. Rep. 120, holding purchase by city of land for use of fair association, ultra vires; Laporte v. Gamewell Tel. Co., 146 Ind. 476, 58 Am. St. Rep. 366, holding city council has no power to ratify, by resolution or otherwise, invalid indebtedness of city; Hammond v. Place, 116 Mich. 631, 74 N. W. 1003, holding payment of valid obligation of city enforceable by mandamus to compel taxation; State v. Young, 29 Minn. 545, 9 N. W. 750, holding State, by contracting debt, obligates itself to resort to taxation to pay same; Floyd v. Perrin, 30 S. C. 17, 8 S. E. 20, 2 L. R. A. 247, holding legislature, by authorizing municipality to subscribe to railroad, does not acquire right to confer upon it taxing power, not otherwise authorized by law; Gould v. Paris, 68 Tex. 516, 4 S. W. 652, holding contract for purchase of fire engine void, city lacking power to tax; arguendo, in Breckinridge County v. M'Cracken, 61 Fed. 195, 22 U. S. App. 115. See note in 59 Am. Dec. 789, on legislative control of taxation.

Distinguished in County of Moultrie v. Fairfield, 105 U. S. 379, 26 L. 949, where there was power to levy tax to pay bonds in question.

Municipalities.-Railway aid bonds are upheld, because issued for a public use, which it is the right and duty of the State government to assist, p. 661.

Cited and applied in Township v. Beasley, 94 U. S. 314, 24 L. 164, upholding township bonds issued to aid in construction of a custom mill, owned by an individual; Fellows v. Walker, 39 Fed. 653, upholding statute authorizing issue of municipal bonds to private corporations organized for purpose of furnishing natural gas to municipalities; arguendo, in Kelly v. Pittsburgh, 104 U. S. 81, 26 L. 659, no special application; dissenting opinion in Jarrolt v. Moberly, 103 U. S. 589, 26 L. 495, as authority for holding bonds issued to aid a railroad company in erecting "machine shops," are issued for a public use, the case was decided on other grounds, the majority affirming the opinion of the Circuit Court, 5 Dill. 255, F. C. 7,223.

Railroads.— Power of State to lend its aid in construction of railroad is based on theory that a railroad is a quasi-public corporation, p. 661.

Cited generally in Agawam v. Hampden, 130 Mass. 536, upholding act authorizing town to raise funds to build bridge; ar

guendo, in dissenting opinion in Lake Superior, etc., Ry. Co. v. United States, 93 U. S. 457, 23 L. 972, Cole v. La Grange, 113 U. S. 7, 28 L. 898, 5 S. Ct. 419, and Chicago, etc., Ry. Co. v. AttorneyGeneral, 5 Fed. Cas. 596, without special application.

Constitutional law. In every free government there are rights which are beyond the control of the State, p. 662.

Cited and relied upon in Chicago, etc., Ry. Co. v. Chicago, 166 U. S. 237, 41 L. 985, 17 S. Ct. 585, holding State has no right to take private property for public use without making due compensation; State v. Addington, 12 Mo. App. 221, implied reservations of right exist of such absolute character that laws infringing same will not be enforced; Varner v. Arnold, 83 N. C. 210, holding orders of Federal military commanders, after war, interfering with administration of laws by courts, not binding thereon; arguendo, in Hurtado v. California, 110 U. S. 536, 28 L. 239, 4 S. Ct. 121, in discussion as to what constitutes due process of law.

Cited, but not applied, in State v. Lindell Hotel Co., 9 Mo. App. 458, holding court had power to raise assessments of land without giving actual notice to owners. Distinguished in Stratton Claimants v. Morris Claimants, 89 Tenn. 511, 15 S. W. 90, 12 L. R. A. 73, holding power of legislature extends to every subject except as prohibited by Constitution.

Constitutional law. In all branches of our government, State and national, the powers of government are limited and defined, p. 663.

Cited and principle relied upon in Lothrop v. Stedman, 13 Blatchf. 142, 42 Conn. 590, F. C. 8,519, holding legislative inquiry into corporation's affairs with reference to repeal of its charter, not a judicial act; arguendo, in Maynard v. Hill, 125 U. S. 205, 31 L. 657, 8 S. Ct. 726, holding legislative department, when not restrained by constitutional provisions or certain fundamental rights of citizen, may act upon everything within range of civil government; Pollock ▼. Farmers, etc., Trust Co., 157 U. S. 599, 39 L. 826, 15 S. Ct. 696, as authority for holding Congress does not possess unlimited powers of taxation; State v. Boswell, 104 Ind. 543, 4 N. E. 677, holding provisions of Constitution not applicable to States, unless latter are referred to therein, expressly or by clear implication; Opinion of Justices, 66 N. H. 633, 33 Atl. 1079, holding reservation of power to repeal charter not creation of power to confiscate; Knapp v. Thomas, 39 Ohio St. 391, 48 Am. Rep. 471, holding pardon, once granted, cannot be impeached or recalled by any branch of State government; McCullough v. Brown, 41 S. C. 249, 19 S. E. 473, 23 L. R. A. 422, holding dispensary act invalid, as embarking State in commerce.

Taxation. The word "tax" defined, p. 664.

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