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. Staehle,
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 of counsel with, plaintiff, and James Reilly,
interest to the defendant Bell H. Chandler, Esq., attorney for defendant Angela Dias de
neither of whom gave value for his convey- Daley; Allen R. English, Esq., for counsel."
ance, and both of whom had notice of her Following this recital is a verbatim tran-
equities, and of Mehan's knowledge thereof, script of the proceedings and of the evidence
and that Mehan had given no value for his by question and answer, and of the rulings
conveyance. On the 8th day of January, of the court. It concluded by the following
1891, the defendant Turner conveyed an un- recital:
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
Dias."

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 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 of
typewriting entitled in the above cause con-[543]
tain a transcript of the reporter's notes tak-
en at the trial of said cause, which was filed
therein with the clerk of the court Novem-
ber 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, submit the foregoing as an amended statement of facts in said cause, and the same was 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."

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.

TERRITORY OF NEW MEXICO, Appt.,

v.

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

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.

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 [547]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 the taxing power of the state is never pre-pany refuses payment because he claims that sumed to be relinquished unless the inten- the property is exempt from taxation under tion be expressed in terms too clear to be the act of July, 1866; but it is also alleged mistaken. If a doubt arise as to the inten- "that the said exemption from taxation extion of the legislature, that doubt must be tends only to the right of way granted to solved against exemption from taxation. said railroad company on each side of its railroad where it may pass through the public domain, and does not extend to any improvements made upon the right of way, nor to the said right of way itself where it passes through land not included in the public domain."

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.

It is alleged that the receiver of the com

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 It is prayed that "the said taxes, so levied section 7, or independently of that section. as aforesaid," be declared a lien on the propSection 1 creates the corporation and author-erty in the hands of the receiver. and that he izes it to construct and maintain a continu- be ordered "to pay the said taxes." General ous railroad and telegraph line from and to relief is also prayed. 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."

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.

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 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.

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

poration of another state-corporation u of

diction of suit-suit to cancel a guaranty, etc., can only be brought in court of equity -power of railroad corporation to guarantee bonds of another corporation when guaranty not ultra vires-rights of bona fide holders when validity assumed-obligation to inspect records-jurisdiction depending 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 sult, 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

sult.

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

6.

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

holders.

N WRITS OF CERTIORARI to the Unit

was

the Sixth Circuit to review a judgment of that court reversing the decree of the Circuit Court of the United States for the District of Kentucky, entered for the plaintiff against all the defendants in a suit in equity brought by the Louisville, New Albany, & Chicago Railway Company against the Louisville 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 A an injunction against suits thereon. 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 reinanded 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.

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

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 of Kentucky, and other citizens of Kentucky, Its validity if the corporation could, by any of New York and of Illinois, for the cancelation 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 bill.

action of its officers or stockholders or of

both, have authorized the execution and issue of the obligation.

9.

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.