of counsel with, plaintiff, and James Reilly, Esq., attorney for defendant Angela Dias de Daley; Allen R. English, Esq., for counsel." Following this recital is a verbatim transcript of the proceedings and of the evidence by question and answer, and of the rulings of the court. It concluded by the following recital:

han had given no value for his conveyance. | twenty-seventh day of May, A. D. 1892, at
On the 15th of September, 1890, Mehan con- 9.30 o'clock A. M., before the court (Hon.
veyed an undivided half interest in the Richard E. Sloan, presiding) sitting with-
claims, by a deed duly acknowledged and re-out a jury, in the presence of W. C. Štaehle,
corded, to Dewitt C. Turner, and on the 22d Esq., attorney for, and W. H. Barnes, Esq.,
of November, 1890, a like deed of one-third
interest to the defendant Bell H. Chandler,
neither of whom gave value for his convey-
ance, and both of whom had notice of her
equities, and of Mehan's knowledge thereof,
and that Mehan had given no value for his
conveyance. On the 8th day of January,
1891, the defendant Turner conveyed an un-
divided one-sixth to the defendant F. C.
Fisher, who had knowledge of her equities,
and the notice and knowledge of the prior
parties. On the 15th of October, 1890, she
commenced an action for divorce from said
Daley, and on the 14th day of May, 1891, a
decree was rendered therein in her favor dis-
solving the marriage and awarding her the
mining claims in controversy, and permitting
her to resume her maiden name of "Angela

On the 18th of October, 1890, and before Cohn bought the claims, she commenced an action against Daley, Mehan, and Turner to quiet the title to the claims, and caused to be filed in the recorder's office of the county where the property was situated a notice of the pendency of the action, containing a statement of the nature of the action and of her ownership of and a description of the claims; and Adolph Cohn took title from Mehan after the filing and recording of such notice.

She prayed to be decreed owner of the claims, and that defendants be adjudged to have no interest in them, and that their deeds

be canceled.

The other defendants made default, and the trial proceeded on the issues made between appellant and appellee, and judgment was rendered for her and duly entered. A motion for a new trial was made, but was overruled on the 26th day of November, 1892. A bill of exceptions was submitted by the [542]appellant on the 1st of December, 1892, and settled and allowed on the 15th of said month by the judge who presided at the trial, after objections made by appellee were heard and considered.

The bill of exceptions recites "that on the 27th of May, 1892, the above cause came on regular for trial, and during the progress thereof the following proceedings were had. as more fully appears in the statement of facts filed herein expressly referred to, and the exceptions to rulings of court as therein shown are made a part of this bill of excep


Then follows an enumeration of the rulings and the motion for new trial and the ruling thereon.

A statement of facts or what is called such was submitted to the counsel of appellee on the 16th of December, 1892. It was entitled in the court and cause, and contained the following recital:

"Transcript of shorthand notes of testimony, &c., taken from the trial of the aboveentitled cause, at the courtroom of said court, in the city of Tombstone, on Friday, the

The foregoing 102 pages and documents herein referred to and to be copied into the transcript of the clerk when directed is submitted to the opposite party, the defendant, by plaintiff as a full statement of facts in the trial of this cause, and is by the plaintiff agreed to as such.

Dec. 16th, 1892.

W. H. Barnes,
Att'y for Plaintiff.

The record contains the following:


We agree that the foregoing-pages typewriting entitled in the above cause con-[543] tain a transcript of the reporter's notes taken at the trial of said cause, which was filed therein with the clerk of the court November 25th, 1892, but said pages also contain matter not in such transcript when so filed, to wit:

"Clerk will here copy said notice in tran-
script," and many such commands, commenc-
ing on page 3 of transcript, all commanding
or directing the clerk to insert in his tran-
script all the documentary evidence intro-
duced by plaintiff (appellant) at the trial,
but none, except in one instance, of the doc
umentary evidence of defendant (appellee),
though defendant introduced in evidence
many documents, including the deposition of
A. J. Mehan, as shown by said transcript,
pages 37 to 40, inc., and the alleged "state
ment of facts" is not such nor even a fair
statement of the evidence, and we do not
agree thereto.
James Reilly,

Attorney for Angela Diaz.
Allen R. English,
Of Counsel.

Counsel for plaintiff in the above-entitled cause of Cohn v. Mehan et al., having heretofore, to wit. on the 16th day of December, 1892, submitted to me a statement of facts in said cause, and the same having been thereupon submitted to counsel for defendants, and being by them disagreed to as correct, and being likewise found by me to be evidence, said counsel for plaintiff did thereincomplete because omitting documentary after, to wit, on the 6th day of March, 1893, ment of facts in said cause, and the same submit the foregoing as an amended statewas on said sixth day of March, 1893, by me approved and signed.

Richard E. Sloan, Judge.

A completed statement was not filed till May, 1893. The judgment was affirmed on appeal to the supreme court of the territory, and the case was then brought here.

If the so-called statement of facts was filed in time under the Arizona Revised Statutes, it was not "a statement of the facts in the nature of a special verdict made and [544]certified by the court below" under the act

of April 7, 1874. 18 Stat. at L. 27, 28, chap.
80. We must assume, therefore, that the
evidence supports the judgment. Marshall
v. Burtis, 172 U. S. 630 [ante, 579].

Was the statement filed in time to become
a part of the bill of exceptions? Certainly
not, if it was not on file at the time of the
settlement of the bill of exceptions or did not
afterward become a part of the record. It
was submitted on the 16th of December, but
not agreed to. It was not approved and
signed by the judge who tried the case until
March, 1893, and not filed until May, 1893.
The Revised Statutes of Arizona provide
as follows:

"843. (Sec. 195.) After the trial of any cause either party may make out a written statement of the facts given in evidence on the trial and submit the same to the opposite party or his attorney for inspection. If the parties or their attorneys agree upon such statement of facts, they shall sign the same, and it shall then be submitted to the judge, who shall, if he find it correct, approve and sign it, and the same shall be filed with the clerk during the term."

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Leave granted to file petition for rehearing, and counsel allowed thirty days to file additional briefs, March 6, 1899. Rehearing granted and case taken on briefs heretofore filed, April 17, 1899. Decided May 15, 1899.

PPEAL from a judgment of the Supreme

Court of the Territory of New Mexico on petition for rehearing of the cause, which is reported in 172 U. S. 171, 186, ante, 407, 413, where judgment of the Supreme Court of the Territory was affirmed. That judgment is reversed, and the cause remanded for further proceedings.

Mr. Frank W. Clancy for appellant.
Robert Dunlap for appellees.
Messrs. C. N. Sterry, E. D. Kenna, and

*Mr. Justice McKenna delivered the[545] opinion of the court:

"844. (Sec. 196.) If the parties do not This case was submitted with No. 106,
agree upon such statement of facts, or if the which was between the same parties, and on
judge do not approve or sign it, the parties the authority of the opinion in that case the
may submit their respective statements to judgment of the supreme court of the terri-
the judge, who shail from his own knowl-tory was affirmed. 172 U. S. 171, 186 [ante,
edge, with the aid of such statements, dur- 407, 413].
ing the term, make out and sign and file
with the clerk a correct statement of the
facts proved on the trial, and such state-
ment shall constitute a part of the record."
"845. (Sec. 197.) The court may by an
order entered upon the record during the
term authorize the statement of facts to be
made up and signed and filed in vacation,
at any time not exceeding thirty days after
the adjournment of the term."

The record shows that the November term of the court at which the case was tried was finally adjourned December 29, 1892. The statement was therefore not filed within the time required by the statute, and cannot to be considered as part of the record.

The cases were argued together, and it was supposed involved identically the same questions dependent upon a statement of facts which were stipulated. No distinction between the cases *was indicated in the oral[546] argument, and a reference of a few lines in a brief of thirty-five pages was overlooked.

In the petition for rehearing our attention was called to the fact that there is a substantial difference between the matters involved in this cause and those arising in No. 106. The difference is this: In 106 the right of way was in Bernalillo county through land which was public domain, whilst in this case the right of way is in Valencia county across the public domain for The rulings of the court, as exhibited in 33 miles only, and for 60.7 miles over land the bill of exceptions, are assigned as error. which was held in private ownership at the But for an understanding of the rulings the time of the grant to the railroad by the act testimony in the case is necessary, and we of 1866. In other words, the railroad com[545] re *precluded from looking at it, because it pany derived its right of way for 33 miles is not properly a part of the bill of excep- in Valencia county under section 2 of the tions, for the reasons we have given. act of July 27, 1866, and to 66.7 miles unIt follows that on the record there is noth-der the power conferred by section 7 of said ing for our review, and judgment is affirmed.



NEW YORK et al.

(See S. C. Reporter's ed. 545-551.)

act. This difference was not adverted to in No. 106, and we will now consider the effect of it. In the opinion in 106 we said:

"The right of way is granted to the extent of two hundred feet on each side of the railroad, including necessary grounds for station buildings, workshops, etc. What, then, is meant by the phrase, 'the right of

Exemption from taxation of railroad right way? A mere right of passage, says appel

of way-separate valuation.

The exemption from taxation of a railroad

lant. Per contra, appellee contends that the fee was granted, or, if not granted, that such a tangible and corporeal property was

granted, that all that was attached to it became part of it and partook of its exemption from taxation.

"To support its contention appellant urges the technical meaning of the phrase, 'right of way,' and claims that the primary presumption is that it was used in its technical sense. Undoubtedly that is the presumption, but such presumption must yield to an opposing context, and the intention of the legislature otherwise indicated. Examining the statute we find that whatever is granted is exactly measured as a physical thing, not as an abstract right. It is to be two hundred feet wide and to be carefully broadened, so as to include grounds for the superstructures indispensable to the railroad."

2. It is contended by the appellee that the assessment was invalid because the laws of the territory required the assessment of the[548] right of way and its superstructures to be made as an entirety.

The contention is technical. It is not complained that the valuation of the superstructures was excessive, but that they were assessed as personal property, and hence invalidly assessed, because by the laws of the territory the term "real estate" includes lands to which title has been acquired and improvements, and the term "improvements" includes all buildings, structures, fixtures, and fences erected upon or fixed to land, whether title has been acquired or not.

The record does not afford the means of judging of the contention as clearly as might be wished, but we think it is not tenable.

The intervening petition, which is the basis of the proceedings, proceeds upon the ground that omissions were made in assessments of property to the railroad company for a series of years beginning with the year 1892 and ending with 1896, and that additions were made of said property under the laws of the territory for said years. The valuation of the property and the taxes levied against it are stated, and a description of the property is attached.

After further consideration of what was granted, we also said: "The interest granted by the statute to the Atlantic & Pacific Railroad Company therefore is real estate of corporeal quality, and the principles [847]of such apply. One of these, and an elemental one, is that whatever is erected upon it becomes part of it." And we concluded that not only the right of way was exempt, but all its superstructures were exempt. But our conclusion was expressly based on the terms of the statute, and we took care to affirm the rule of construction which had been announced many times and in many ways, that It is alleged that the receiver of the comthe taxing power of the state is never pre-pany refuses payment because he claims that sumed to be relinquished unless the intention be expressed in terms too clear to be mistaken. If a doubt arise as to the intention of the legislature, that doubt must be solved against exemption from taxation.

Applying this rule to the act of July, 1866, the exemption from taxation must be confined to the right of way granted by the United States by section 2 of the act, and to the superstructures which become a part of it, and not to the right of way which the railroad company may have acquired under section 7, or independently of that section. Section 1 creates the corporation and authorizes it to construct and maintain a continuous railroad and telegraph line from and to certain points, and invests the company with the powers, privileges, and immunities necessary to effect that purpose. Section 2 provides: "That the right of way through the public lands be, and the same is hereby granted, to the said Atlantic & Pacific Railroad Company for the construction of a railroad and telegraph line as proposed. Said way is granted to said railroad to the extent of one hundred feet in width on each side of said railroad where it may pass through the public domain, and the right of way shall be exempt from taxation within the territories of the United States."

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The right of way which is granted and the right of way which is exempt from taxation is precisely identified by the natural and first meaning of the words used and their relations. It would require an exercise of construction to extend the exemption, and even if there are reasons for it, there are certainly reasons against it, and in such conflict the rule requires that the latter shall prevail.

the property is exempt from taxation under
the act of July, 1866; but it is also alleged
"that the said exemption from taxation ex-
tends only to the right of way granted to
said railroad company on each side of its
railroad where it may pass through the pub-
lic domain, and does not extend to any im-
provements made upon the right of way,
nor to the said right of way itself where it
passes through land not included in the pub-

It is prayed that "the said taxes, so levied
as aforesaid," be declared a lien on the prop-
erty in the hands of the receiver, and that he
be ordered "to pay the said taxes." General
relief is also prayed.

To the petition of intervention the receiver submitted pleas respectively to the claim of taxes for each of the years. The pleas were substantially alike, and alleged the assessment of the company's property for each of the years, with a description or designa-[549] tion of it, the value at which it was assessed, and the taxes levied against it and the amounts of taxes paid by the company.

In the first plea it is alleged that the company through its officers made a return to the county assessor of its property situated in the county, and a copy of the return is at tached and made part of the plea. Discriminating the property upon which the taxes were paid and that in the return of the company assessed, the plea alleges:

"That the other property returned by the taxing officers of said railroad company for said year was and is the property upon which the taxes are paid as above stated, and as shown by Receiver's Exhibits 3 and 4.

"That the only pretended or claimed levy of taxes against any property of the Atlantic & Pacific Railroad Company for the said

ear, remaining unpaid, is that shown to have een extended and levied upon the 'right of way, of the Atlantic & Pacific Railroad Comany, which was and is assessed at the lump um of $327,103, upon the assessment roll or said year, together with the further sums laced in said assessment roll in the column eaded Value of cattle,' opposite the words ontained in the column in said assessment oll headed 'Name of property owners,' save nd except as hereinafter stated.

"The names and sums referred to are as ollows:

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-"All of which is shown by the said assessment and levy of taxes upon said assessment roll, as will fully appear by reference to said Receiver's Exhibits No. 1 and No. 2,

and the indorsements thereon.

*"That prior to the first day of January, 1894, the Atlantic & Pacific Railroad Company paid each and every item of taxes assessed and levied against it or its property in said Valencia county, territory of New of way was assessed, and the taxes levied against the assessed value of its 'right of way, and that levied against the figures set opposite the names of the stations as hereinabove set forth and described."

The right of way, therefore, was assessed in 1892, and whatever taxes were due on it or any part of it were left delinquent.

As to the other years the record is not much less definite. It appears that the right of way was assessed, and the taxes levied against it were not paid. In all the pleas there is a careful allegation of payment of the taxes which were conceded to be valid

embraced within said right of way where
same runs over what was public domain
of the United States when said right of
way was granted to said company, 33
miles in length, valued at $6,500 per
mile .
*"Also the cross ties, rails, fish plates, bolts,[551]
spikes, bridges, culverts, telegraph line and
other structures erected upon the right of
way of the Atlantic & Pacific Railroad Com-
pany in said county of Valencia, and con-
stituting "improvements" upon the land
embraced within said right of way where
it runs over land which was held in pri-
vate ownership at the time of the grant of
said right of way to said railroad com-
pany, 60.7 miles, valued at $6,500 per

Station houses, depots, switches,
water tanks and all other im-
provements at Rio Puerco station $1,800
Station houses, depots, switches,

water tanks and all other im-
Station houses, depots, switches,
provements at San Jose station..
water tanks and all other im-
Station houses, depots, switches,
provements at El Rito station...



water tanks and all other im-
Station houses, depots, switches,
provements at La Guna station.. 2,100

water tanks and all other im-
Station houses, depots, switches,
provements at Cubero station...

water tanks and all other imStation houses, depots, switches, provements at McCarty's station water tanks and all other imStation houses, depots, switches, provements at Grant's station... water tanks and all other improvements at Blue Water station






did not invalidate their assessment as real some of them given a separate valuation estate. It was mere description which did not change the essential or legal character of the superstructures.

The assessments were not, as contended by and as careful a one that the company re-appellee, of personal property. They were fused "to pay the balance of the taxes be- clearly of real estate, and because the imcause of the fact that the assessment as made by the assessor was an assessment of provements were designated by name and the right of way and station grounds of the Atlantic & Pacific Railroad, which were and are exempt under the act of Congress creating said railroad company." It is manifest that the right of way was assessed and the taxes were delinquent. In what manner were the additional assessments made? It is shown in the exhibit to the intervening petition. We select the assessment for 1892. The assessments for the other years are the same, the amounts only being different to a small extent.

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It follows from these views that

The judgment of the Supreme Court of the remanded for further proceedings in accordTerritory must be reversed, and the cause ance with this opinion; and it is so ordered.





(See S. C. Reporter's ed. 552–577.)

"The cross ties, rails, fish plates, bolts, spikes,
bridges, culverts, telegraph line and other
structures erected upon the right of way
of the Atlantic & Pacific Railroad Com-
pany in the county of Valencia, and con-
stituting 'improvements' upon the land Corporation of one state may be made a cor-

poration of another state-corporation a N WRITS OF CERTIORARI to the Unitdiction of suit-suit to cancel a guaranty, the Sixth Circuit to review a judgment of etc., can only be brought in court of equity that court reversing the decree of the Cir-power of railroad corporation to guar-cuit Court of the United States for the Disantee bonds of another corporation when trict of Kentucky, entered for the plaintiff guaranty not ultra vires-rights of bona against all the defendants in a suit in equity fide holders-when validity assumed-ob- brought by the Louisville, New Albany, & ligation to inspect records-jurisdiction | Chicago Railway Company against the Louisdepending upon citizenship.

1. A corporation of one state may be made a corporation of another state by the legislature of that state in regard to property and

acts within its territorial jurisdiction. 2. A corporation created by a state remains a citizen of that state for the purposes of the Jurisdiction of the Federal courts, although also created a corporation of another state. 8. Jurisdiction of a suit, once acquired by a court of the United States by reason of the requisite citizenship, is not lost by a change in the citizenship of either party pending the


4. A suit to cancel a guaranty of negotiable bonds which might otherwise pass into the hands of bona fide purchasers, and to restrain suits upon the guaranty, because of facts not appearing upon its face, can only be brought In a court of equity.

5. A railroad corporation, unless authorized by its act of incorporation or another statute, has no power to guarantee the bonds of another corporation.


The guaranty by one railroad company of the bonds of another is not ultra vires in the sense of being outside of its corporate powers

when expressly authorized by a statute of the state of its creation; the prerequisite

prescribed by the statute, that it should be made upon the petition of a majority of the stockholders, is only a regulation of the mode and agencies by which the corporation should exercise the power granted to it.

7. A guaranty of bonds by a corporation, which could be lawfully made only by a pet!tion of the majority of its stockholders, which

was not obtained, is enforceable by bona fide holders of the bonds, but invalid as to other



ville Trust Company et al., for the cancelation of a contract and of a guaranty indorsed upon bonds issued by the Richmond, Nicholasville, Irvine, & Beattyville Railway Company and held by other defendants, and for an injunction against suits thereon. A supplemental bill filed against the Louisville Banking Company and others holding the guaranteed bonds. The Circuit Court of Appeals further ordered the suit to be dismissed as to the Louisville Trust Company and the Louisville Banking Company except as to forty-five bonds held by the latter company; and as to these bonds ordered an injunction against suits on the guaranty, etc. Decree of Circuit Court of Appeals in the first case affirmed and case remanded to the United States Circuit Court, with directions to dismiss the suit as against the Louisville Trust Company; and in the second case decrees of both lower courts reversed and case remanded to the United States Circuit Court, with directions to enter a decree in conformity with the opinion of this court.

See same case below, 69 Fed. Rep. 431, and 57 Fed. Rep. 42, and 43 U. S. App. 550, 75 Fed. Rep. 433, 23 C. C. A. 378.

Statement by Mr. Justice Gray:

This was a bill in equity, filed April 9, 1890, in the circuit court of the United States for the district of Kentucky, by the Louisville, New Albany, & Chicago Railway Company (hereafter called the New Albany Company), described as "a corporation duly organized and existing under the laws of the 8. One who takes from a railroad or business state of Indiana," against the Ohio Valley corporation, in good faith and without actual Improvement & Contract Company (hereaftnotice of any inherent defect, a negotiable er called the construction company), the obligation issued by order of the board of Richmond, Nicholasville, Irvine, and Beattydirectors, signed by the president and secre-ville Railway Company (hereafter called the tary in the name and under the seal of the Beattyville Company), and the Louisville[553] corporation, and disclosing upon its face no Trust Company, all corporations of the state want of authority. has the right to assume Its validity if the corporation could, by any of New York and of Illinois, for the cancelaof Kentucky, and other citizens of Kentucky, both, have authorized the execution and issue tion of a contract between the New Albany Company and the construction company, and of a guaranty indorsed by the New Albany Company, in accordance with that contract, upon bonas issued by the Beattyville Company and held by the other defendants, and for an injunction against suits thereon. The Louisville Banking Company, a corporation of Kentucky, and other bondholders were afterwards made defendants by a supplemental

action of its officers or stockholders or of

of the obligation.

Records of a railroad corporation are private records which a purchaser of bonds is not obliged to inspect to see whether a guaranty thereon was authorized by a majority

of the stockholders.

10. The rights and liabilities of a state corporation, as a corporation of other states than that which created it, cannot be adjudicated in a suit in a Federal court in which the jurisdiction depends upon its citizenship in that state, and would be ousted by citizenship in the other states.

[Nos. 29, 30.]


The bill alleged that the guaranty was fraudulently placed on the bonds of the Beattyville Company by a minority of the plaintiff's directors, who, as individuals, had secured the option to buy the bonds at a low was void, for want of the presence of a quo

Argued May 4, 5, 1898. Decided May 15, price; and also averred that the guaranty


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