That amendment refers only to suits brought | quirement in behalf of two classes of peragainst a state. But applying the same sons: First, 'the board of railroad commisprinciples of construction to the removal sioners;' second, 'any person or company inacts and to cases in which it is claimed that terested in such order or requirement.' Now, the state, though not the nominal, is in fact while in actions under the statute by perthe real, party plaintiff, it may fairly be sons of the second class, which generally will held that the state is such real party when be shippers or passengers, the state has no the relief sought is that which inures to it pecuniary interest, it is not so in actions alone, and in its favor the judgment or de- under this statute by persons of the first cree, if for the plaintiff, will effectively class, its board of railroad commissioners. operate. Such a case was Ferguson v. Ross, In such actions it abandons its governmen3 L. R. A. 322, 38 Fed. 161. There an action tal character, enters a court of competent juwas brought in the name of Ferguson, a risdiction as a suitor under the law, incurs shore inspector, against Ross and others, to the same liability for costs and expenses as recover a penalty. The statute of New does any other suitor, to be paid under the York authorized the suit to be prosecuted in express provision of the statute out of any the name of the inspector, but all the mon- money in the treasury not otherwise approeys recovered were payable into the treasury priated, and is, moreover, pecuniarily interof the state, and it was held by the circuit ested not only by reason of the liabilities it court for the eastern district of New York incurs in the action, but because of its pethat the action was one in which the real cuniary interest in the judgments which may party plaintiff was the state. It was for be obtained and which when pushed to the its sole benefit that the action was brought, | final extremity of execution may result in and it alone was to be benefited by the re-the payment of penalties, not directly into


But this case is not like Ferguson v. Ross, and does not come within the rule above stated. It is not an action to recover any money for the state. Its results will not inure to the benefit of the state as a state in any degree. It is a suit to compel compliance with an order of the railroad commissioners in respect to rates and charges. The parties interested are the railway company, on the one hand, and they who use the bridge,

the state treasury, it is true, but into the
treasury of one of its political subdivisions
for the benefit of the public schools, to the[61]
establishment and maintenance of which its
credit is pledged by the organic law. It
seems to us, therefore, that the state, in addi-
tion to its governmental, has a real pecuni-
ary, interest in the subject-matter of this
controversy, and that the suit is being pros-
ecuted for its benefit in every sense, and is
not subject to removal to the United States
court, and we so hold."

We are unable to concur in these views.

on the other; the one interested to have the charges maintained as they have been, the others to have them reduced in compliance Whatever may be the result of any subsewith the order of the commissioners. They [60]are the real *parties in interest, and in re-quent or ancillary proceeding, the direct obspect to whom the decree will effectively | ject of this suit is to obtain a decree of the operate.

court commanding the railway company to comply with the order of the commissioners. Such a decree is similar to the ordinary decrees of a court of equity, and it is familiar that a court of equity may enforce compliance with its orders and decrees by penalties upon the delinquents. So that if this possible pecuniary result is sufficient to make the state the real party plaintiff it would follow that in Missouri the state is the real party plaintiff in every equity suit, because in every equity suit such penalties may be imposed.

It is true that the state has a governmental interest in the welfare of all its citizens, in compelling obedience to the legal orders of all its officials, and in securing compliance with all its laws. But such general governmental interest is not that which makes the state, as an organized political community, a party in interest in the litigation, for if that were so the state would be a party in interest in all litigation; because the purpose of all litigation is to preserve and enforce rights and secure compliance with the law of the state, either statute or common. The Neither can it be held that the state's volinterest must be one in the state as an arti-untary assumption of the costs of the litificial person. Reagan v. Farmers' Loan & gation when the decree is adverse to the railT. Co. 154 U. S. 362-390, 38 L. ed. 1014- road commissioners makes it the real party 1021, 4 Inters. Com. Rep. 560, 14 Sup. Ct. plaintiff. That is simply an incidental matRep. 1047. ter, and does not determine its relations to While not controverting these general the suit any more than its payment of the propositions, the supreme court of the state salary of the judge, fees of jurors, or any was of the opinion that the state had a di- other expenses of the litigation. We are of rect, pecuniary interest in the result of the opinion, therefore, that the party named in litigation, by virtue, first, of its possible lia-the record as plaintiff is the real party bility for costs, and, secondly, because were the litigation pushed to the extreme there might be penalties imposed which would, when collected, pass into the school fund of the state. We quote its language:

plaintiff, and that the voluntary assumption by the state of the costs in some contingencies of the litigation, or the indirect and remote pecuniary results which may follow from a disobedience of the orders of the "This section of the statute makes pro- court, do not make it the party to whom vision for a civil action to enforce the re- 'alone the relief sought inures, and in whose

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or direction of the commissioners and accepted by them for the use, purposes, or benefit of the District prior to March 14th, *1876. It was provided that all such claims [63] against the District should in the first instance be prosecuted before the court of claims by the contractor, his personal representatives, or his assignee, in the same manner and subject to the same rules in the hearing and adjudication of the claims as the court then had in the adjudication of claims against the United States. 21 Stat. at L. 284, 285, §§ 1, 2.

By the same act it was provided that if no appeal was taken from the judgment of the court of claims in the cases therein provided for, within the term limited by law for appealing from the judgments of that court, "and in all cases of final judgments by the court of claims, or, on appeal, by the supreme court where the same are affirmed in favor of the claimant, the sum due thereby shall be paid, as hereinafter provided, by the Secretary of the Treasury." § 5.

The repeal, by the act of Congress of March 3, 1897, chap. 387 (29 Stat. at L. 665, 669), of the act of February 13, 1895, chap. 87 (28 Stat. at L. 664), and the enactment that all These consolidated suits were brought unproceedings pending under the act so repealed der the above act, and within the time limshall be vacated, and that no judgment here-ited by its provisions.

tofore rendered in pursuance of said act shall In the progress of the cause a judgment was rendered in one of the cases in favor of the District for $658.05, and in the others. the petitions were severally dismissed. New trials were granted in each case, and time was given for further proof.

be paid, precludes the Supreme Court of the United States from taking jurisdiction of an appeal by the District of Columbia from a judgment allowing certain claims, although the application for the appeal had been made and notice given before the repeal of the statute.

[No. 36.]

Argued October 23, 1901. Decided ber 4, 1901.


By an act of Congress approved February 13th, 1895, chap. 87, amendatory of the above act of June 16th, 1880, it was proNovem-vided that in the adjudication of claims brought under the act of 1880 "the court of claims shall allow the rates established

PPEAL from a judgment of the Court of Claims against the District of Columbia. Dismissed for want of jurisdiction. The facts are stated in the opinion. Mr. Robert A. Howard argued the cause, and, with Assistant Attorney General Pradt, filed a brief for appellant.

Messrs. George A. King and J. W. Douglass argued the cause and filed separate briefs for appellees.

Mr. William B. King also filed a brief for appellees.

[62] *Mr. Justice Harlan delivered the opinion of the court:

By an act of Congress approved June 16th, 1880, chap. 243, the jurisdiction of the court of claims was extended to all claims then existing against the District of Columbia, arising out of contracts by the late board of public works and extensions thereof made by the commissioners of the District, as well as to such claims as had arisen out of contracts by the district commissioners after the passage of the act of June 20th, 1874 (18 Stat. at L. 116, chap. 337), and all claims for work done by the order

NOTE. On the effect of statutes to defeat or preserve pending civil actions-see Pritchard V. Savannah Street & Rural Resort R. Co. (Ga.) 14 L. R. A. 721, and note. And see note to United States v. Tynen, 20 L. ed. U. S. 158.

and paid by the board of public works; and whenever said rates have not been allowed, the claimant or his personal representative shall be entitled, on motion made within sixty days after the passage of this act, to a new trial of such cause.' 28 Stat. at L.


The cases were heard on the exceptions of the defendant to a referee's report, and the aggregate amount found due from the District was $13,458.33. And the record states that upon the facts set forth in the referee's report "the court, under the act of February 13, 1895 (28 Stat. at L. 664, chap. 87), and in accordance with the agree ment of the parties, decides, as conclusions of law as to the said sum of $13,458.33, so found due from the District of Columbia, that the several claimants named below each recover judgment against the United States in the amounts stated, viz." *Here follows, [64] in the record, a statement of the amount found due each claimant, the aggregate being the above sum.

The order referring the cause for a statement of the several accounts was made after the passage of the act of February 13th, 1895, and the referee's report was made pursuant to the provisions of that act.

In accordance with the findings of fact and of law the court, on the 22d of June, 1896, entered final judgment in favor of the

respective claimants for the amounts found | government. It seems, therefore, clear that due them respectively, the judgment upon a declaration by this court in relation to its face purporting to be "within the intent the matters involved in the present appeal and meaning of the act of February 13th, would be simply advisory in its nature, and 1895." not in any legal sense a judicial determination of the rights of the parties. What was said by Chief Justice Taney in Gordon v. United States, 117 U. S. 697, 702, may be

On the 3d of September, 1896, the District of Columbia, by the Attorney General of the United States, made application for and gave notice of an appeal to this court. Sub-here repeated. After stating that this sequently, February 25th, 1897, the District moved to set aside the judgment of June 22d, 1896, and to grant a new trial. While the motion for new trial was pending Congress passed the act of March 3d, 1897, chap. 387, making appropriations for the expenses of the government of the District for the fiscal year ending June 30th, 1898. That act, among other things, provided that the above act of February 13th, 1895, "be, and the same is hereby, repealed, and all proceedings pending shall be vacated, and no judgment heretofore rendered in pursuance of said act shall be paid." 29 Stat. at L. 665, 669.

court should not express an opinion where its judgment would not be final and conclusive upon the rights of the parties, and that it was an essential part of every judg ment passed by a court exercising judicial power that it should have authority to enforce it or to give effect to it, the Chief Justice said: "It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the ag grieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless ConOur attention was called by counsel to gress should at some future time sanction the case of Re Hall, 167 U. S. 38, 41, 42 L. it, and pass a law authorizing the court to ed. 69, 70, 17 Sup. Ct. Rep. 723, 724. in carry its opinion into effect. Such is not which it is stated that the court of claims the judicial power confided to this court in made the following general order: "The the exercise of its appellate jurisdiction; act of 13th February, 1895, 28 Stat. at L. yet it is the whole power that the court [66] 664, chap. 87, having been repealed by Con- is allowed to exercise under this act of Congress, it is ordered in all suits brought un- gress." See also Hayburn's Case, 2 Dall. der or subsequent to said act that motions 409, 1 L. ed. 436; United States v. Ferreira, for new trial, applications for judgments, 13 How. 40, 46, 14 L. ed. 42, 44; Re Sanand all other papers in such suits be re-born, 148 U. S. 222, 37 L. ed. 429, 13 Sup. stored to and retained upon the files of the court without further proceedings being had." This order is not found in the present record.

What was the effect of the act of 1897 upon the power of this court to re-examine the final judgment of the court of claims in these cases? In our opinion, there can be only one solution of this question.

The present cases were brought under the [65]act of 1895, and *were determined with reference to its provisions. In view of the repeal of that act by Congress, the requirement that pending proceedings be vacated, and the express prohibition of the payment of judgments theretofore rendered, any declaration by this court as to the correctness of the final judgment entered by the court of claims under the act of 1895 would be useless for every practical or legal purpose, and would not be in the exercise of judicial power within the meaning of the Constitution. It was an act of grace upon the part of the United States to provide for the payment by the Secretary of the Treasury of the amount of any final judgment rendered under that act. And when Congress by the act of 1897 directed the Secretary not to pay any judgment based on the act of 1895, that officer could not be compelled by the process of any court to make such payment in violation of the act of 1897. A proceeding against the Secretary having that object in view would, in legal effect, be a suit against the United States; and such a suit could not be entertained by any judicial tribunal without the consent of the

Ct. Rep. 577; and Interstate Commerce Commission v. Brimson, 154 U. S. 447, 483, 486, 38 L. ed. 1047, 1059, 1060, 4 Inters. Com. Rep. 545, 14 Sup. Ct. Rep. 1125.

It results that, as no judgment now rendered by this court would have the sanction that attends the exercise of judicial power, in its legal or constitutional sense, the present appeal must be dismissed for want of jurisdiction and without any determination of the rights of the parties.

It is so ordered.

PANY et al., Plffs. in Err.,


GEORGE P. HEWES, Tax Collector, etc.

(See S. C. Reporter's ed. 66-78.)

Corporations charters exemptions from taxation -impairment of obligation of contract-repeal of exemption.


A bill averring that a railroad charter, and an exemption from taxation for a term of twenty years contained therein, constitute a NOTE.-On Federal jurisdiction over state courts; necessity of Federal question-see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267, and Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998.

As to what is a Federal question; when con

sidered-see note to Re Buchanan, 39 L. ed. U. S. 884.

On the power of state legislature to cxempt

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contract with the state, which is violated by a bill for an injunction against the collecsubsequent legislation repealing the exemption of taxes assessed against a railroad com. tion, raises a Federal question for which there pany. Affirmed. Is sufficient color to sustain the jurisdiction. of the Supreme Court of the United States on writ of error to a state court which has decided against the exemption.

A certificate of the chief justice of a state court, stating that the validity of state legislation subsequent to the charter of a corpora tion was drawn in question upon the ground that it impaired the obligation of a contract, and that the decision was in favor of the validity of such legislation, may be resorted to, In the absence of an opinion, to show that a Federal question which was otherwise raised in the record was actually passed upon by the


Statement by Mr. Justice Brown:

*This was a bill in equity filed in the court [67] of chancery of Harrison county, Mississippi, by the railroad company, against the tax collector of that county, to enjoin the collection of certain property and privilege taxes assessed against the railroad company for the fiscal year 1896.

The bill averred in substance the incorporation of the railroad company by an act of the legislature of the state of Mississippi, approved February 23, 1882, the 18th sec8. The charter of the Gulf & Ship Island Rall- tion of which act declared "that said comroad Company granted by Miss. act February 23, 1882, even if it be considered as a revival pany, its stock, its railroads and appurteof the rights and privileges which had for-nances, and all its property in this state, merly belonged to a company chartered in necessary or incident to the full exercise of 1850, is taken subject to the provision of Miss. all powers herein granted, shall be exempt Const. 1869, which requires the property of from taxation for a term of twenty years such corporations to be taxed, like that of in- from the passage of this act;" that immedividuals, in proportion to its value. diately thereafter the corporation entered 4. A subrogation by statute of one corporation upon the construction of its road, and at the to the rights and privileges of a former cor- time of the filing of the bill had about 75 poration does not include an immunity from miles in operation; that, notwithstanding this charter exemption, the state railroad commission has returned its property for taxation, and that defendant has demanded, not only a privilege tax, but a property tax levied for state and county purposes, and threatens seizure of its property. Wherefore an injunction was prayed.


5. The exemption from taxation for a term of

twenty years, which Miss. act February 23, 1882, 18, assumes to give to the railroad company thereby incorporated, must, in the light of the state Constitution, providing for the taxation of the property of corporations in proportion to its value, and of the prior decisions of the state courts, be deemed to be subject to the power of the legislature to alter, amend, or repeal it.

6. The question whether or not a repealable exemption from taxation, given by state law, has been in fact repealed by a subsequent statute, is one which turns upon the construction of a state law, and is not reviewable on writ of error from the Supreme Court of the United States to a state court, although it would be otherwise if the exemption were ir


repealable and thus constituted a contract.

Taxes upon the privileges of corporations, being taxes upon their property, are subject to the limitations of Miss. Const. 1869, art. 12, §§ 13, 20, requiring the property of corporations to be taxed, like that of individuals, In proportion to its value.

[No. 5.]

To this bill defendant interposed a demurrer for want of equity, and because the exemption was a mere bounty, repealable at the pleasure of the legislature, and void of any element of contract. The demurrer was sustained, and leave granted the plaintiff to amend its bill. Thereupon it filed an amendment alleging that the exemption in the charter constituted a contract between the plaintiff and the state, that the railroad was constructed upon the faith of such contract, and that it was not within the power of the state to repeal the exemption; and invoking in that connection the contract clause of the Constitution. Defendant again demurred. The demurrer was sustained, and an appeal granted to the su-[68] preme court of the state, which affirmed the decree of the court below. Whereupon

Argued October 15, 16, 1901. Decided No- plaintiff sued out a writ of error from this

vember 18, 1901.

N ERROR to the Supreme Court of the State of Mississippi to review a decision affirming a decree sustaining a demurrer to from taxation-see Hogg v. Mackay (Or.). 19 L. R. A. 77, and note.

court, which defendant moved to dismiss.

Messrs. Eaton J. Bowers and Edward Mayes argued the cause and filed a brief for plaintiffs in error.

to same--see note to Elmendorf v. Taylor, 6 L. ed. U. S. 290.

As to what laws are void as impairing obli

On the effect of decisions of state courts in Federal courts-see notes to United States ergation of contracts-see notes to Franklin Counrel. Butz v. Muscatine, 19 L. ed. U. S. 490, and Forepaugh v. Delaware, L. & W. R. Co. (Pa.) 5 L. R. A. 508.

That the United States Supreme Court will not review decisions of state courts construing state statutes, unless specially authorized-see note to Commercial Bank v. Buckingham, 12 L. ed. U. S. 169.

ty Grammar School v. Bailey (Vt.) 10 L. R. A. 405; Fletcher v. Peck, 3 L. ed. U. S. 162; McCanna & F. Co. v. Citizens' Trust & Surety Co. 24 C. C. A. 20; Montana Gre-Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co. 35 C. C. A. 12.

On change of decision of state courts as impairing obligation of contract-see note to Los Angeles v. Los Angeles City Water Co 44 L.

As to construction and effect of state laws and Constitutions and state decisions in regarded. U. S. 886.

Mr. R. C. Beckett argued the cause, and, with Mr. Frank A. Critz, filed a brief for defendant in error.

Contentions of counsel sufficiently appear in the opinion.

[68] *Mr. Justice Brown delivered the opinion

of the court:

1. The motion to dismiss must be overruled. Counsel for the railroad company appears to have invoked the contract clause of the Constitution upon the original argument; but whether this be so or not the bill was subsequently amended under leave of the court, by averring that the charter and the exemption from taxation contained in the 18th section constituted a contract between the plaintiff corporation and the state of Mississippi that the state would not demand any taxes upon its capital, property, or stock for the term of twenty years from the enactment of the charter; and that, if said exemption from taxation had been repealed, which the company denied, it was not within the power of the state to repeal such exemption, for the reason that the same constituted a contract upon which the company had acted, and upon the faith of which it had constructed the road; and that such repeal was a violation of the contract clause of the Constitution. The Federal question was properly raised, and there is at least sufficient color for it to sustain our jurisdiction. No opinion was delivered by the supreme court, but the chief justice certifies that the validity of the state legislation subsequent to the charter of 1882 was drawn in question upon the ground of its impairment of the contract contained in such charter, and that the decision was in favor of the validity of such legislation. While such a certificate is insufficient to give [69]us jurisdiction, where *such jurisdiction does not appear in the record it may be resorted to, in the absence of an opinion, to show that a Federal question which was otherwise raised in the record was actually passed upon by the court. Armstrong v. Athens County Treasurer, 16 Pet. 281, 10 L. ed. 965; Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 41, 48, 45 L. ed. 415, 418, 21 Sup. Ct. Rep. 256; Mississippi & M. R. Co. V Rock, 4 Wall. 177, 18 L. ed. 381; Parmelee v. Lawrence, 11 Wall. 36, 20 L. ed. 48; Gross v. United States Mortg. Co. 108 U. S. 477, 27 L. ed. 795, 2 Sup. Ct. Rep. 940.

the full exercise of all the powers herein granted, shall be exempt from taxation for a term of twenty years from the passage of this act."

To strengthen its position, and to enable the company to rally to its support an exemption antedating the Constitution of 1869, upon which the defendant relies, the plaintiff calls to our attention an act passed in 1850 to incorporate the Gulf & Ship Island Railroad Company, and a further act approved March 1, 1854, amendatory of that act, the 11th section of which declares "that the property and investments of the company connected with this enterprise, within this state, shall not be subject to taxation until the road shall be in full operation and completed."

The position of the plaintiff in this connection is that prior to the Code of 1857 there was no general law and no constitutional provision in any way restraining the legislature from granting irrepealable exemptions, and that the charter of 1882 was a mere continuance of the original charter of 1850-1854; that the construction of the road authorized by that charter *had never [70] been abandoned; and that so late as 1872 the legislature had adopted a memorial to Congress praying that a land grant made by Congress in 1858 for the benefit of the Gulf & Ship Island Railroad Company, and which had lapsed to the United States by the intervention of the Civil War, might be revived in favor of that railroad.

1882 cannot be considered as a revival or But we are of opinion that the charter of continuation of the charter of 1854, since the names of the incorporators are entirely different, the routes of the two railroads are also different, and no reference is made in the charter of 1882 to the prior charters, although the names of the two corporations of 1882 to indicate even the existence of a are identical. There is nothing in the act prior act incorporating a road under the same name. It is true that at the same memorial to Congress was adopted by the session of the legislature (1882) another legislature for a revival of the grant of public lands made by the United States in 1856 to aid in the construction of the Gulf & Ship Island Railroad, but in this very memorial it was stated that "at its present session our legislature has granted a new thus again attesting the abiding and earnact of incorporation with liberal provisions, est interest felt by our people in this important work."

2. The bill set out, and, until the argument in this court, the plaintiff company relied solely upon, a charter granted February 23, 1882, by the legislature of MissisIt is also true that on March 13, 1884, sippi, to incorporate the Gulf & Ship Island Railroad Company, the 18th section of the legislature passed another act to faciliwhich declared "that in order to encourage tate the construction of the Gulf & Ship Isthe investment of capital in the works which land Railroad, and for other purposes, the said company is hereby authorized to con- 8th section of which declared "that said struct and maintain, and to make certain in Gulf & Ship Island Railroad Company are advance of such investment, and as an in- hereby subrogated to all the rights and ducement and consideration therefor, the privileges heretofore granted by the state of taxes and burdens which this state will and Mississippi to the Gulf & Ship Island Railwill not impose thereon, it is hereby de- road Company, and shall have the right to clared that said company, its stock, its rail-use and enjoy such field notes, maps, and road and appurtenances, and all its prop- surveys as have been heretofore made in erty in the state necessary or incident to the interest of said road as were authorized

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