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"And appeals and writs of error from said court in said districts to said appellate court in criminal cases shall be prosecuted under the provisions of chapter forty-six of Mans-error or appeal. It is the final judgment of field's Digest, by this act put in force in the Indian territory."

These enactments clearly provide that writs of error in criminal cases shall be taken to the appellate court of the United States for the Indian territory, and dispose of the question before us unless there are other provisions of the acts of Congress which prevent such a conclusion.

they relate to the jurisdiction and powers | the penalty of death, the conclusion might
of said supreme court of Arkansas as to ap-be too technical that Congress intended to
peals and writs of error, and as to the trial distinguish between courts of one class and
and decision of cases, so far as they are ap- of the other. But the difficulty with the sec-
plicable, shall be and they are hereby ex- tion is that it manifestly does not contem-
tended over and put in force in the Indian plate the allowance of a writ of error to any
territory.
appellate tribunal, but only to review the
final judgment of the court before which the
respondent was tried, where such judgment
could not otherwise be reviewed by writ of
a trial court that may be re-examined upon
the application of the respondent, and it is
to that court that the cause is to be remand-
ed, and by that court that the judgment of
this court is to be carried into execution.
The obvious object was to secure a review by
some other court than that which passed
upon the case at nisi prius. Such review by
two other courts was not within the inten-
tion, as the judiciary act of March 3, 1891,
shows. This is made still clearer by the fur-
ther provision that no such writ of error
shall be sued out or granted unless a peti-
tion therefor shall be filed with the clerk of
the court in which the trial shall have been
had during the same term or within such
*time, not exceeding sixty days next after the [636]
expiration of the term of the court at which
the trial shall have been had, as the court
may for cause allow by order entered of rec-
ord.' This language is entirely inapplica-
ble to the prosecution of a writ of error to
the judgment of an appellate tribunal affirm-
ing the judgment of the trial court. And
the case before us shows this."

The counsel for defendants in error contend that the act of February 6, 1889 (Sup. R. S. vol. 1, 2d ed. 638), gave to the Supreme Court the right to review. The sixth section of that act is in the following words:

"That hereafter, in all cases of conviction of crime, the punishment of which provided by law is death, tried before any court of the United States, the final judgment of such court against the respondent shall, upon the application of the respondent, be re-examined, reversed, or affirmed by the Supreme Court of the United States upon a writ of error, under such rules and regulations as said court may prescribe."

It will be observed that when this law was passed the United States court for the In- It is true that, in the present cases the dian territory did not possess jurisdiction writs of error were sued out directly to the in capital cases. That jurisdiction was sub-trial court, whereas in the case of Cross the sequently conferred. But, even if it be conceded that the provisions of the act of February 6, 1889, might have attached or become applicable to the judgments of the United States court for the Indian territory when jurisdiction in capital cases was [635]extended to that court, the intention of Congress is manifested to have been otherwise by the provision above cited from the act of March 1, 1895, whereby it is provided that writs of error in capital cases shall be taken to the court of appeals of the United States for the Indian territory.

writ of error was taken to the judgment of the supreme court of the District affirming the judgment of the trial court, and therefore some of the language quoted from the opinion in the latter case is not strictly applicable. But the reasoning of the court, showing that it was unlikely that Congress intended a review by two other courts than the trial court, is applicable. It is not to be supposed that Congress, when it provided by the act of March 1, 1895, for a review or writ of error in the court of appeals for Indian territory, regarded the sixth section of the act of February 6, 1889, as also applicable.

This court had occasion to consider the effect of the act of Feruary 6, 1889, in respect to the judgments of the supreme court The counsel for the defendants in error of the District of Columbia in capital cases, cite in their briefs the fifth and thirteenth in the case of Cross v. United States, 145 U. sections of the act of March 3, 1891, estabS. 571 [36: 821], and it was there said: lishing the United States circuit courts of "It is contended on behalf of the govern-appeals, providing that appeals or writs of ment that the writ of error will not lie because the supreme court of the District of Columbia is not a court of the United States, within the intent and meaning of the section. McAllister v. United States, 141 U. S. 174 [35: 693], is cited with the decisions referred to therein as sustaining that view, but it is to be remembered that that case referred to territorial courts only, and, moreover, if the disposal of the motion turned on this point, the words 'any court of the United States,' are so comprehensive that, used as they are in connection with convictions subject to

error may be taken from the district or circuit courts direct to the Supreme Court of the United States in cases of capital crimes, and providing that appeals and writs of error may be taken from the decisions of the United States court in the Indian territory to the Supreme Court of the United States, or to the cirucit court of appeals in the eighth circuit, in the same manner and under the same regulations as from the circuit or district courts of the United States.

Of course as, when this act was passed, the United States court in the Indian territory

บ.

DOLORITAS MARTIN DE CORDOBA, José Manuel Cordoba, Josefita Martin de Duran, et. al.,

(See S. C. Reporter's ed. 638-641.)

Appeal from supreme court of territory-rolease by mother of illegitimate children— when will not cut off inheritance.

1.

had no jurisdiction over capital crimes, Con- | WILLIAM NAEGLIN, Annie Naeglin, Adgress did not contemplate any appeal or writ ministratrix of Henry Korte, Deceased, et of error in such cases. And when, by the al., Appts., act of March 1, 1895, jurisdiction of the United States court in the Indian territory was extended to capital cases, and a court of 537]appeals was established, with power to entertain appeals and writs of error, the act of March 3, 1891, cannot be regarded as applicable in such cases. Where a statute provides for a writ of error to a specified court of appeals it must be regarded as a repeal of any previous statute which provides for a writ of error to another and different court. The decisions of the court of appeals of the United States in the Indian territory are final except so far as they are made subject to review by some express provision of law. In the eleventh section of the act of March 1, 1895, it is provided that "appeals and writs of error from the final decision of said appellate court shall be allowed and may be taken to the circuit court of appeals for the eighth judicial circuit in the same manner and under the same regulations as appeals are taken from the circuit courts of the United States;" but it is not claimed by the counsel for the plaintiff in error that this provision applies to capital cases; and see the case of Folsom v. United States, 160 U. S. 121 [40: 363].

It has been held by this court that the court established in the Indian territory,

though a court of the United States, is not

a district or circuit court of the United States. Re Mills, 135 U. S. 268 [34: 110]. We accept the contention of the Solicitor General on behalf of the government, that the court of appeals in the Indian territory, being a court of the United States, is analogous to the supreme court of the District of Columbia, and bears the same relation to the trial court in the Indian territory as the supreme court of the District of Columbia bore to the trial court in the District.

And it was held in Ex parte Bigelow, 113 U. S. 329 [28: 1006], that no appeal could be taken or writ of error sued out to the supreme court of the District of Columbia in a

2.

3.

On appeal from the supreme court of a territory, when no jury was had and there are no questions as to the admission or exclusion of testimony, the only question to consider is whether the findings of fact sustain the decree.

A release by the mother of illegitimate children, in her own right and for them, of all claims against the father, without the sanction of any tribunal, will not cut off a right of the children to inherit from him.

A natural guardian has no power to release the claim of a ward to an inheritance without the sanction of some tribunal.

[No. 35.]

Argued October 13, 1898.

24, 1898.

Decided October

A Territory of New Mexico reversing the decree of the District Court of the County of Mora, Fourth Judicial District in said Territory, in favor of the defendants, and remanding the case to the District Court with instructions to enter a decree in favor of the plaintiffs, in an action brought by Doloritas Martin de Cordoba et al. against William Naeglin et al. to establish the right of the plaintiffs as the children and heirs of one Frederick Metzger. Affirmed.

PPEAL from the Supreme Court of the

See same case below, 7 N. M. 678.

Statement by Mr. Justice Brewer: On March 29, 1886, the appellees, Doloritas Martin de Cordoba et al., filed their bill in the district court of the county of Mora, fourth judicial district, territory of New Mexico, to establish their rights as the children and heirs of one Frederick Metzger. After answer the case was referred to a master, who reported findings of fact and conclusions of law in favor of the plaintiffs. Upon a hearing in the district court a decree was entered adversely to the conclusions of the master and for the defendants. On appeal to the supreme court of the territory that decree was on August 24, 1895, reversed, and one entered remanding the case to the district court, with instructions to enter a decree in conformity with the findings and The motion is allowed, and the writs of er-conclusions of the master. Thereupon the de

capital case, the court saying: "No appeal or writ of error in such case as that lies to this court. The act of Congress has made the judgment of that court conclusive, as it had a right to do, and the defendant, having one review of his trial and judgment, has no special reason to complain." Re Heath, 144 U. S. 92 [36: 358]; Cross v. Burke, 146 U. S. 84 [36: 897]. 638] *Our conclusion is that we have no appellate jurisdiction of capital cases from the United States court for the northern district of the Indian terory, and that such appellate jurisdiction is vested exclusively in the United States court of appeals in the Indian territory.

ror in these cases are dismissed.

fendants appealed to this court.

171 U.S.

315

At the time of entering the decree, and also | Foundry & Machine Co. 151 U. S. 47 [38: 1989]of overruling a "petition for rehearing, no 229]. statement of facts was prepared by the supreme court, and no other determination of the facts than such as appears from the direction to enter a decree in conformity with the findings and recommendations of the master. But after the supreme court had adjourned, an application was made to have the findings of fact made by the master incorporated into the record as a statement and finding of facts by that court, for the purpose of an appeal, and upon that application the following order was entered:

The order signed in vacation by the several members of the supreme court cannot be considered an order of the court. Assuming, however, for the purposes of this case, that, in view of the general language in the opinion of the court, we may take the findings of the master as its statement of facts, we observe that no doubtful question of law is presented for our determination. The master finds that Metzger was the father of the appellees, and that he owned certain property. These are questions of fact, resting upon testimony, concluded, so far as this court is concerned, by the findings, and into which it

And now the foregoing statement and finding as to the facts proven and estab-is not our privilege to enter. lished by the evidence in each of said causes are ordered to be incorporated in the record of said supreme court as part thereof as fully as we may be thereunto empowered, the July term of the supreme court having been adjourned on the 26th day of September, A. D. 1896, and this order made and signed by each of the judges while in his district respectively. Thomas Smith, Chief Justice. Needham C. Collier, Associate Justice, Supreme Court of New Mexico. Signed at Silver City, in the third judicial district.

Gideon D. Bantz, Associate Justice of the Supreme Court of New Mexico and Presiding Judge of the Third Judicial District Court.

Signed at Santa Fé, N. M., in the first judicial district.

N. B. Laughlin, Associate Justice of the Supreme Court and Judge of the First Judicial District.

It appears from the bill, answer, and findings that Frederick Metzger, though an unmarried man, was the father of several children by different women, and this suit is one between the several illegitimate children to determine their respective rights to share in his estate. The counsel for appellants says in his brief: "The bill of complaint and the testimony present for determination of the court two [640]questions: First, What estate and property did Metzger own at the time of his death? and, second, Who is entitled to that estate?"

Mr. Harvey Spalding for appellants.
No counsel for appellees.

[640] *Mr. Justice Brewer delivered the opin-
ion of the court:

No question is made in this record as to the admission or exclusion of testimony. There being no jury the case comes here on appeal, and the only question we can consider is whether the findings of fact sustain the decree. 18 U. S. Stat. 27; Stringfellow v. Cain, 99 U. S. 610 [25:421]; Cannon v. Pratt, 99 U. S. 619 [25:446]; Neslin v. Wells, 104 U. S. 428 [26:802]; Hecht v. Boughton, 105 U. S. 235, 236 [26:1018]; Gray v. Howe, 108 U. S. 12 [27:634]; Eilers v. Boatman, 111 U. S. 356 [28:454]; Zeckendorf v. Johnson, 123 U. S. 617 [31:277]; Sturr v. Beck, 133 U. S. 541 [33:761]; Mammoth Min. Co. v. Salt Lake

While under the common law illegitimate children did not inherit from their father, the statutes of New Mexico introduced a new rule of inheritance (Comp. Laws New Mexico, 1884, § 1435, p. 680): "Natural children, in the absence of legitimate, are heirs to their father's estate, in preference to the ascendants, and are direct heirs to the mother if she die intestate." In other words, under this statute, there being no legiti-[641] mate children, illegitimate children inherit.

It appears that on March 19, 1875, and while Metzger was living, the mother of these plaintiffs, then minors, in her own right and for the minors, receipted and relinquished all claims against him. Without stopping to consider what was meant by that release, and giving to it all the scope which its language may suggest, we remark that a natural guardian has no power to release the claim of a ward to an inheritance without the sanetion of some tribunal. Woerner's American Law of Guardianship, p. 185, and following. The decree is affirmed.

LEWIS PIERCE et al., Plffs. in Err.,

v.

SOMERSET RAILWAY.

(See S. C. Reporter's ed. 641-650.)

Federal question-when state judgment will not be reviewed-Federal right may be waived-question of waiver is not Federal question.

1.

2.

3.

4.

The question whether a state statute impairs the obligation of a contract is a Federal question; but the question whether the defense of estoppel by laches and acquiescence is established is not a Federal question.

A judgment of the state court, based on two distinct grounds, each of which is sufficient to sustain the judgment, and one of which involves no Federal question, cannot be reviewed on writ of error by this court.

A person may, by his acts or omission to act, waive a right which he might otherwise have under the Constitution of the United States.

Whether or not a person has lost a right under the Federal Constitution by his action or failure to act is not a Federal question which will sustain a writ of error to a state court.

[No. 12.]

Argued October 11, 12, 1898. Decided ber 31, 1898.

Octo-ecution of the mortgage, the provision for
the formation of corporations by the holders
of bonds was extended so as to include the

[blocks in formation]

[642] *Mr. Justice Peckham delivered the opinion of the court:

This is a writ of error directed to the Supreme Judicial Court of the state of Maine, for the purpose of reviewing a judgment of that court in favor of the defendant in error, who was plaintiff below. (88 Me. 86-100.) The facts necessary to an understanding of the case are as follows:

The Somerset Railroad Company was organized in 1871, pursuant to an act of the legislature of the state of Maine, for the purpose of building and operating a railroad between Oakland, in the county of Kennebec, and Solon, in the county of Somerset, in that state. In order to obtain the money to build its road, the company, on the first day of July, 1871, executed a mortgage to three trustees, covering its railroad and franchises and all its real estate and personal property then possessed by it or to be thereafter acquired. By the terms of the mortgage the trustees were to hold in trust for the holders of the bonds of the railroad company, to be issued by it, payable as therein mentioned. The company thereupon issued and sold its bonds, secured by the mortgage, to the amount of $450,000, with proper coupons for interest attached, payable semiannually on the first days of January and July in each year, at the rate of seven per cent, the principal of the bonds becoming due on the first of July, 1891. The proceeds of the sale of these bonds were applied to the building, equipping, and operating of the road from Oakland to North Anson, a station between Oakland and the proposed terminus of the road at Solon. In 1876 the road had been completed as far as the village of Anson, twenty-five miles from Oakland, and it was opened and its cars commenced running in that year between those points. The company continued to so operate its road until September, 1883. It had, how ever, become insolvent some time prior to April first, 1883, and at that time its coupons for interest on the bonds secured by the above-mentioned mortgage had been unpaid [643] for more than three years. At the time when this mortgage was given, corporations could be formed by the holders of bonds secured by a railroad mortgage, in the manner provided for by the statute. (Rev. Stat. 1871, chap. 51.) In 1878, seven years after the ex

case of railroad corporations where the prin

cipal of the bonds should have remained
overdue for the space of three years, and by
an act of March 6, 1883, the provision was
still further extended so as to apply to the
case in which no interest had been paid
thereon for more than three years.

By virtue of the provisions of the Revised
Statutes of 1871, as amended and extended
by the statutes of 1878 and 1883 (both stat-
utes, as will be seen, being subsequent to
the execution of the mortgage), the holders
of bonds of the Somerset Railroad Company,
following the method provided by those stat
utes, and on the 15th day of August, 1883,
formed a new corporation under the name
of the Somerset Railway. The capital stock
of this new corporation was $736,648.76,
made up of the principal of $450,000 of the
unpaid outstanding bonds, and $286,648.76
of interest thereon up to the 15th of
August, 1883. This was in accordance with
the provisions of the statute that the new
company should issue the capital stock to
the holders of the bonds, secured by the
mortgage, in the proportion of one share of
stock for each one hundred dollars worth of
bonds and interest. On the 1st of Septem-
ber, 1883, the Somerset Railway took posses-
sion of the railroad from Oakland to Anson
(which was as far as it had then been com-
pleted), and of all the other property em-
braced in the mortgage, and it has ever since
held and operated the same. Its capital
stock was divided into shares of one hundred
dollars each to the amount of the bonds and
overdue coupons as the law provided. The
stockholders of the old company had pre-
viously and on the 13th of July, 1883, at their
annual meeting, voted that the bondholders
should organize a new corporation under the
statutes of the state, and take possession of
the railroad, and at the same meeting voted
to surrender possession of the road to the
new corporation, the Somerset Railway.
these bonds, including some held by the
*The holders of a very large majority of[644]
parties in whose interest the plaintiffs in er-
of this corporation, but the holders of all the
ror now act, participated in the formation
bonds did not so participate, a majority
being sufficient under the statute for the reg
ular formation of the corporation. Bonds
largely exceeding a majority of those which
were issued under the mortgage were sur-
rendered to the Somerset Railway, and are
now held by it, and the stock issued therefor,
the amount being at the time the suit herein
was instituted $339,400; and the amount of
bonds not surrendered was $110,600, not
counting overdue coupons.

From the time the new company took possession of the railroad it has continued to operate it as far as it was then completed, and it has also extended the same some sixteen miles, and as extended it has continued to operate it.

To obtain the funds necessary for the completion of the sixteen miles of extension

the new company, under what is claimed to
be due authority of law, issued its bonds on
the first day of July, 1887, to the amount of
$225,000, payable in twenty years from their
date, and to secure payment of the same
mortgaged its entire railroad from Oakland
to Bingham, forty-one miles. These bonds
were sold by the company and the proceeds
applied towards the completion of the road.
The mortgage given by the Somerset Rail-
road Company in 1871 included the roadbed
from Oakland to the terminus of the road in
Solon. The mortgage given by the new com-
pany in 1887 embraced the railroad so far as
it had been constructed by the old company,
as well as the sixteen miles constructed by
the new company after it took possession of
the road. The giving of this mortgage in Answering that complaint, the trustees
1887 was a matter of public notoriety, well denied that the new company was ever estab
known to the trustees of the original mort-lished under any law of Maine; they denied
gage, and no objection was made in behalf that it ever had any legal organization or
of anyone; on the contrary, the trustees any legal existence; they denied that the
stood by and saw this mortgage of 1887 given
and the bonds sold to innocent parties and
the money expended in extending the rail-
road sixteen miles, and it was not until more
than five years afterwards, when the road
had been built and completed and was in
operation to Bingham, that the trustees took
action.

ment of the $225,000 borrowed for the ex
tension of its road; also the contracting of
debts and the expending of large amounts
of money in useful repairs and improve-
ments; and that all this was done without
the trustees making known to the new com.
pany that they or those whom they repre-
sented as bondholders had any claim or cause
of action against the new company; and the
complainants therefore averred that the trus
tees and those whom they represented had
been guilty of such delay and laches as to
estop them from denying the validity of the[646]
new corporation or its title or possession.
The new company also alleged the entire va
lidity of the proceedings resulting in its for-
mation.

[645] *In December, 1892, the trustees in the
mortgage of 1871 commenced two actions at
law, one in each of two counties in which the
railroad was situated, in which actions the
president of the new corporation, its superin-
tendent, treasurer, accountant, and various
station agents and conductors, were made
parties defendant because they were in pos-
session of the road, and the plaintiffs, trust-
ees, claimed to recover from the defendants,
as disseisors, the possession of the rail-
road, and from the defendants, as individ-
uals, the sum of $180,000 as mesne profits.
The ground upon which the trustees based
their action was that the new company was
never legally organized; that by the terms
of the mortgage the trustees alone could take
proceedings to foreclose the mortgage, and
that the acts of the legislature passed subse-
quently to the execution of the mortgage,
and under which the new company was
formed, could and did have no validity as
against the contract rights of the plaintiffs,
secured to them by the law as it stood at the
time of the execution of the mortgage of

1871.

Upon these facts and many others which are not now material to be stated, the new

company commenced this suit in equity against the trustees in the mortgage of 1871, who were plaintiffs in the two actions at law, to enjoin the further prosecution of those actions, and for other relief as mentioned in their complaint. In this suit the new company alleged (among other things) that the trustees in the mortgage of 1871 and their successors had stood by, allowed, and encouraged the formation of the new company and the surrendering of the bonds and the ssuing of the stock in lieu thereof, and also the execution of the mortgage by the new company to secure the pay

mortgage of July 1, 1871, had ever been le gally foreclosed, and they alleged that neither the original board of trustees named in the mortgage, nor their successors, had ever taken any steps towards a legal foreclosure, or had ever determined that there had been breach of the conditions of that mortgage, and that the attempted foreclosure of that mortgage was in violation of the contract rights secured to the trustees thereunder at the time of its execution, and the attempted foreclosure of that mortgage was therefore utterly void; they denied that any statute of the state had been enacted, or could be enacted, which would or could deprive the bondholders or trustees of the rights secured to them by virtue of their contract of July 1, 1871, and the laws of the state in force when the contract was made. They alleged that the contract rights of all the parties to the mortgage of July 1, 1871, were fixed by the laws in force when the mortgage was execut ed, and that no law of the state of Maine then existing authorized the organization of the new corporation in the manner attempted herein, and that the laws then existing formed a part of the mortgage contract, and provided a mode by which the mortgage could be legally foreclosed and a new com pany formed for the benefit of all the bondthe bondholders who took no part in the holders; and they alleged that the rights of formation of the new company were fixed by the mortgage contract, and could not be al fected in any way except by payment. Various other matters were set up in their an swer, which it is not now necessary to men

tion.

these issues held: “(1) That the new com
The supreme judicial court of Maine upon
acts of the legislature of Maine, passed sub-
pany was legally organized: that the various
sequently to the execution of the mortgage,
did not impair the obligations of the con
tract contained in the mortgage, but simply 647)
afforded a more convenient and quicker rem
edy for a violation of the agreement and for
the foreclosure of the mortgage than existed
at the time of its execution." (2) The
court also stated and held as follows: "The
new corporation took possession of the mort-

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