ministratrix of Henry Korte, Deceased, et
al., Appts.,

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—re
lease 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 of error in such cases. And when, by the act of March 1, 1895, jurisdiction of the United States court in the Indian territory was extended to capital cases, and a court of [637]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

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.

The motion is allowed, and the writs of error in these cases are dismissed. 171 U.S.

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. Decided October
24, 1898.

APPEAL from the Supreme Court of the
Territory of New Mexico reversing the
decree of the District Court of the County of
Mora, Fourth Judicial District in said Ter-
ritory, in favor of the defendants, and re-
manding 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.

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

Statement by Mr. Justice Brewer:
On March 29, 1886, the appellees, Do-
loritas 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 mas-
ter, who reported findings of fact and con-
clusions of law in favor of the plaintiffs.
Upon a hearing in the district court a de-
cree 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
conclusions of the master. Thereupon the de-
fendants appealed to this court.

315

7

174

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 in-serve that no doubtful question of law is precorporated 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 obsented 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 sanction 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 Octo-ecution of the mortgage, the provision for

ber 31, 1898.

IN ERROR to the Supreme Judicial Court
of the State of Maine to review a judgment
of that court in favor of the defendant in er-
ror, the Somerset Railway, in an action com-
menced by it against Lewis Pierce et al. to
enjoin the further prosecution of certain ac-
tions and for other relief. Dismissed.
See same case below, 88 Me. 86.
The facts are stated in the opinion.
Messrs. D. D. Stewart
Cleaves for plaintiffs in error.
Messrs. Josiah H. Drummond, Edmund
F. Webb, and Joseph W. Symonds for de-
fendant in error.

and H. B.

[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 formation of corporations by the holders of bonds was extended so as to include the

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 statutes, 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 Somerset Railroad Company was or- the holders of the bonds, secured by the ganized in 1871, pursuant to an act of the mortgage, in the proportion of one share of legislature of the state of Maine, for the stock for each one hundred dollars worth of On the 1st of Septempurpose of building and operating a railroad bonds and interest. between Oakland, in the county of Kennebec, ber, 1883, the Somerset Railway took possesand Solon, in the county of Somerset, in that sion of the railroad from Oakland to Anson state. In order to obtain the money to build (which was as far as it had then been comits road, the company, on the first day of pleted), and of all the other property emJuly, 1871, executed a mortgage to three braced in the mortgage, and it has ever since trustees, covering its railroad and fran- held and operated the same. Its capital chises and all its real estate and personal stock was divided into shares of one hundred property then possessed by it or to be there- dollars each to the amount of the bonds and after acquired. By the terms of the mort- overdue coupons as the law provided. The gage the trustees were to hold in trust for stockholders of the old company had prethe holders of the bonds of the railroad com-viously and on the 13th of July, 1883, at their pany, 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

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
of anyone; on the contrary, the trustees
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

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.

action.

[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 superintendent, treasurer, accountant, and various station agents and conductors, were made parties defendant because they were in possession of the road, and the plaintiffs, trustees, claimed to recover from the defendants, as disseisors, the possession of the railroad, and from the defendants, as individuals, 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 subsequently 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

that it ever had any legal organization or
any legal existence; they denied that the
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 a
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 bond-
the 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 af-
fected in any way except by payment. Vari-
ous 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
pany was legally organized; that the various
acts of the legislature of Maine, passed sub-
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-

A

E

F

gaged property on the first day of September, 1883, and has ever since held it and operated the railroad. This action was authorized by the statute, consented to by the Somerset Railroad Company, the mortgagor, actively proposed and aided by one at least of the trustees, and ever since has been acquiesced in by all the trustees. It is too late for the trustees or dissenting bondholders now to object to technical irregularities, if any exist, especially as the Somerset Railway has since extended the railroad from North Anson to Bingham, a distance of abount sixteen miles; built a branch railroad of one mile in length of great importance to the productiveness of the main line; placed a mortgage upon the road for $225,000 to make these extensions and other improvements; and in other ways materially changed the condition and relations of all parties in terested in the road. Their long acquiescence, without objection, coupled with the changed conditions and relations resulting from the possession and management of the property by the Somerset Railway, estops them from now questioning the legality of the organization of the new corporation." The court further held that, under the statutes of Maine, the bondholders who had refused to take stock in the new company still retained the same rights under their bonds as the holders of the stock in the new company which had been given in exchange for bonds, and that if any bondholder deelined ultimately to exchange his bonds for stock he could not be compelled to do so, and that the net earnings of the company when distributed in the form of dividends or otherwise must be distributed to its stockholders and to the holders of any unexchanged bonds in equal proportions; that if the holders of unexchanged bonds chose to take stock they could do so at any time, or they might retain their present possessions and receive their share of the net earnings pro rata with the stockholders.

[648] It is thus seen that there were two questions determined by the state court: One related to the validity of the statutes passed subsequently to the execution of the mortgage, the court holding them valid, and that they did not impair the obligation of the contract contained in the mortgage. That is a Federal question. The other related to the defense of estoppel on account of laches and acquiescence, which is not a Federal question. Either is sufficient upon which to base and sustain the judgment of the state court. In such case a writ of error to the state court cannot be sustained. Eustis v. Bolles, 150 U. S. 361 [37: 1111]; Rutland Railroad Co. 7. Central Vermont Railroad Co. 159 U. S. 630 [40: 284]; Seneca Nation v. Christy, 162 U. S. 283 [40: 970].

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, as well as under a statute, and the question whether he has or has not lost such right by his failure to act, or by his action, is not a Federal one.

dend under the insolvency proceedings Eustis
waived his legal right to claim that the dis
charge obtained under the subsequent laws
impaired the obligation of a contract. This
court held that, whether that view of the
case was sound or not, it was not a Federal
question, and therefore not within the prov
ince of this court to inquire about.

Mr. Justice Shiras, in delivering the opin-
ion of the court, said:

"The defendant in the trial court depended on a discharge obtained by them under regular proceedings under the insolvency statutes of Massachusetts. This defense the plaintiffs met by alleging that the statutes under which the defendants had procured their discharge had been enacted after the promissory note sued on had been executed and delivered, and that to give effect to a discharge obtained under such subsequent laws would impair the obligation of a contract, within the meaning of the Constitution of the United States. Upon such a state of facts it is plain that a Federal question decisive of the case was presented, and that if the judgment of the supreme judicial court[649] of Massachusetts adjudged that question adversely to the plaintiffs it would be the duty of this court to consider the soundness of such a judgment.

"The record, however, further discloses that William T. Eustis, represented in this court by his executors, had accepted and receipted for the money which had been awarded him, as his portion, under the insolvency proceedings, and that the court below, conceding that his cause of action could not be taken away from him, without his consent, by proceedings under statutes of insolvency passed subsequently to the vesting of his rights, held that the action of Eustis, in so accepting and receipting for his dividend in the insolvency proceedings, was a waiver of his right to object to the validity of the insolvency statutes, and that, accordingly, the defendants were entitled to the judgment.

"The view of the court was that, when the composition was confirmed, Eustis was put to his election whether he would avail himself of the composition offer, or would reject it and rely upon his right to enforce his debt against his debtors notwithstanding their discharge.

"In its discussion of this question the court below cited and claimed to follow the decision of this court in the case of Clay v. Smith, 3 Pet. 411 [7: 723], where it was held that the plaintiff, by proving his debt and taking a dividend under the bankrupt laws of Louisiana, waived his right to object that the law did not constitutionally apply to his debt, he being a creditor residing in another state. But in deciding that it was competent for Eustis to waive his legal rights, and that accepting his dividend under the insolvency proceedings was such a waiver, the court below did not decide a Federal question. Whether that view of the case was sound or not, it is not for us to inquire. It was broad enough, in itself, to support the final judgment, without reference to the Fed

In the above case of Eustis v. Bolles the
state court held that by accepting his divi-eral question."