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Argued October 11, 12, 1898. Decided Octo-ecution of the mortgage, the provision for
ber 31, 1898.

the formation of corporations by the holders

of bonds was extended so as to include the
ERROR to the Supreme Judicial Court case of railroad corporations where the prin.
of that court in favor of the defendant in er overdue for the space of three years, and by
ror, the Somerset Railway, in an action com- an act of March 6, 1883, the provision was
menced by it against Lewis Pierce et al. to still further extended so as to apply to the
enjoin the further prosecution of certain ac- case in which no interest had been paid
tions and for other relief. Dismissed. thereon for more than three years.
See same case below, 88 Me. 86.

By virtue of the provisions of the Revised
The facts are stated in the opinion.

Statutes of 1871, as amended and extended
Messrs. D. D. Stewart and H. B. by the statutes of 1878 and 1883 (both stat-
Cleares for plaintiffs in error.

utes, as will be seen, being subsequent to
Vessrs. Josiah H. Drummond, Edmund the execution of the mortgage), the holders
F. Webb, and Joseph W. Symonds for de- of bonds of the Somerset Railroad Company,
fendant in error.

following the method provided by those stat.

utes, and on the 15th day of August, 1883, (642] *Mr. Justice Peckham delivered the formed a new corporation under the name opinion of the court:

of the Somerset Railway. The capital stock
This is a writ of error directed to the Su- of this new corporation was $736,648.76,
preme Judicial Court of the state of Maine, made up of the principal of $450,000 of the
for the purpose of reviewing a judgment of unpaid outstanding bonds, and $286,648.78
that court in favor of the defendant in error, of interest thereon up to the 15th of
who was plaintiff below. (88 Me. 86-100.) August, 1883. This was in accordance with
The facts necessary to an understanding of the provisions of the statute that the new
the case are as follows:

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
purpose of building and operating a railroad bonds and interest. On the 1st of Septem-
between Oakland, in the county of Kennebec, ber, 1883, the Somerset Railway took posses.
and 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 com-
its road, the company, on the first day of pleted), and of all the other property em.
July, 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
aiter 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 pre-
the 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 annual meeting, voted that the bondholders
mentioned. The company thereupon issued should organize a new corporation under the
and sold its bonds, secured by the mortgage, statutes of the state, and take possession of
to the amount of $450,000, with proper cou- the railroad, and at the same meeting voted
pons for interest attached, payable semi- to surrender possession of the road to the
annually on the first days of January and new corporation, the Somerset Railway.
July in each year, at the rate of seven per these bonds, including some held by the

*The holders of a very large majority of [644]
cent, the principal of the bonds becoming
due on the first of July, 1891. The proceeds parties in whose interest the plaintiffs in er-
of the sale of these bonds were applied to the of this corporation, but the holders of all the

ror now act, participated in the formation
building, equipping, and operating of the bonds did not so participate, a majority
road from Oakland to North Anson, a sta-
tion between Oakland and the proposed ter being sufficient under the statute for the reg.
minus of the road at Solon. In 1876 the

ular formation of the corporation. Bonds
road had been completed as far as the village largely exceeding a majority of those which
of Anson, twenty-five miles from Oakland, were issued under the mortgage were sur-
and it was opened and its cars commenced rendered to the Somerset Railway, and are
running in that year between those points. now held by it, and the stock issued therefor,
The company continued to so operate its the amount being at the time the suit herein
road until September, 1883. It had, how. was instituted $339,400; and the amount of
eter, become insolvent some time prior to bonds. not surrendered was $110,600, not
April first, 1883, and at that time its cou-

counting overdue coupons. pons for interest on the bonds secured by the

From the time the new company took pos. above-mentioned mortgage had been unpaid session of the railroad it has continued to (443]for more than three years. At the time operate it as far as it was then completed,

when this mortgage was given, corporations and it has also extended the same some six-
could be formed by the holders of bonds se. teen miles, and as extended it has continued
cured by a railroad mortgage, in the manner to operate it.
provided for by the statute. (Rev. Stat. 1871, To obtain the funds necessary for the
ehap. 51.) In 1878, seven years after the ex-completion of the sixteen miles of extension

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the new company, under what is claimed to ment of the $225,000 borrowed for the er.
be due authority of law, issued its bonds on tension of its road; also the contracting of
the first day of July, 1887, to the amount of debts and the expending of large amounts
$225,000, payable in twenty years from their of money in useful repairs and improve
date, and to secure payment of the same ments; and that all this was done without
mortgaged its entire railroad from Oakland the trustees making known to the new com-
to Bingham, forty-one miles. These bonds pany that they or those whom they repre-
were sold by the company and the proceeds sented as bondholders had any claim or cause
applied towards the completion of the road. of action against the new company; and the
The mortgage given by the Somerset Rail. complainants therefore averred that the trus.
road Company in 1871 included the roadbed tees and those whom they represented had
from Oakland to the terminus of the road in been guilty of such delay and laches as to
Solon. The mortgage given by the new com. estop them * from denying the validity of the (646)
pany in 1887 embraced the railroad so far as new corporation or its title or possession.
it had been constructed by the old company, The new company also alleged the entire va.
as well as the sixteen miles constructed by lidity of the proceedings resulting in its for
the new company after it took possession of mation.
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 mortgage of July 1, 1871, had ever been le
and the bonds sold to innocent parties and gally foreclosed, and they alleged that neither
the money expended in extending the rail the original board of trustees named in the
road sixteen miles, and it was not until more mortgage, nor their successors, had ever
than five years afterwards, when the road taken any steps towards a legal foreclosure,
had been built and completed and was in or had ever determined that there had been a
operation to Bingham, that the trustees took breach of the conditions of that mortgage,
action.

and that the attempted foreclosure of that (645) *In December, 1892, the trustees in the mortgage was in violation of the contract

mortgage of 1871 commenced two actions at rights secured to the trustees thereunder at law, one in each of two counties in which the the time of its execution, and the attempted railroad was situated, in which actions the foreclosure of that mortgage was therefore president of the new corporation, its superin- utterly void; they denied that any statute tendent, treasurer, accountant, and various of the state had been enacted, or could be station agents and conductors, were made enacted, which would or could deprive the parties defendant because they were in pos

bondholders or trustees of the rights secured session of the road, and the plaintiffs, trust to them by virtue of their contract of July 1, ees, claimed to recover from the defendants, 1871, and the laws of the state in force when As disseisors, the possession of the rail. I the contract was made. They alleged that road, and from the defendants, as individ. the contract rights of all the parties to the uals, the sum of $180,000 as mesne profits. mortgage of July 1, 1871, were fixed by the

The ground upon which the trustees based laws in force when the mortgage was executtheir action was that the

ed, and that no law of the state of Maine then

new company was never legally organized; that by the terms existing authorized the organization of the of the mortgage the trustees alone could take new.corporation in the manner attempted proceedings to foreclose the mortgage, and herein, and that the laws then existing that the acts of the legislature passed subse formed a part of the mortgage contract, and quently to the execution of the mortgage, provided a mode by which the mortgage and under which the new company was

could be legally foreclosed and a new com formed, could and did have no validity as pany formed for the benefit of all the bond; 1 against the contract rights of the plaintiffs, the bondholders who took no part in the

holders; and they alleged that the rights of secured to them by the law as it stood at the formation of the new company were fired by time of the execution of the mortgage of the mortgage contract, and could not be at 1871. Upon these facts and many others which ous other matters were set up in their an.

fected in any way except by payment. Variare not now material to be stated, the new swer, which it is not now necessary to men. company commenced this suit in equity tion. against the trustees in the mortgage of 1871, who were plaintiffs in the two actions at these issues held: “(1) That the new com

The supreme judicial court of Muine upon law, to enjoin the further prosecution of those actions, and for other relief as men acts of the legislature of Maine, passed sub

pany was legally organized : that the various tioned in their complaint. In this suit the sequently to the execution of the mortgars, new company alleged (among other things) did not impair the obligations of the mana that the trustees in the mortgage of 1871 tract contained in the mortgage, but simply 647 and their successors had stood by, al. afforded a more convenient and quicker rem lowed, and encouraged the formation of the edy for a violation of the agreement and for new company and the surrendering of the the foreclosure of the mortgage than existed bonds and the issuing of the stock in lieu at the time of its execution.” (2) The thereof, and also the execution of the mort. I court also stated and held as follows: "The gage by the new company to secure the pay. new corporation took possession of the mort

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gaged property on the first day of Septem- dend under the insolvency proceedings Eustis
ber. 1883, and has ever since held it and ope- waived his legal right to claim that the dis-
rated the railroad. This action was author. charge obtained under the subsequent laws
ized by the statute, consented to by the Som. impaired the obligation of a contract. This
erset Railroad Company, the mortgagor, ac court held that, whether that view of the
tively proposed and aided by one at least of case was sound or not, it was not a Federal
the trustees, and ever since has been acqui- question, and therefore not within the prove
esced in by all the trustees. It is too late ince of this court to inquire about.
for the trustees or dissenting bondholders Mr. Justice Shiras, in delivering the opin-
now to object to technical irregularities, if ion of the court, said:
any exist, especially as the Somerset Rail. “The defendant in the trial court de
way has since extended the railroad from pended on a discharge obtained by them un.
North Anson to Bingham, a distance of der regular proceedings under the insolvency
abount sixteen miles; built a branch railroad statutes of Massachusetts. This defense the
of one mile in length of great importance to plaintiffs met by alleging that the statutes
the productiveness of the main line; placed under which the defendants had procured
a mortgage upon the road for $225,000 to their discharge had been enacted after the
make these extensions and other improve promissory note sued on had been executed
ments; and in other ways materially changed and delivered, and that to give effect to a dis-
the condition and relations of all parties in charge obtained under such subsequent laws
terested in the road. Their long acquies- would impair the obligation of a contract,
cence, without objection, coupled with the within the meaning of the Constitution of
changed conditions and relations resulting the United States. Upon such a state of
from the possession and management of the facts it is plain that a Federal question de-
property by the Somerset Railway, estops cisive of the case was presented, and that if
them from now questioning the legality of the judgment of *the supreme judicial court[649)
the organization of the new corporation.".

of Massachusetts adjudged that question adThe court further held that, under the versely to the plaintiffs it would be the duty statutes of Maine, the bondholders who had of this court to consider the soundness of refused to take stock in the new company

such a judgment. still retained the same rights under their

“The record, however, further discloses bonds as the holders of the stock in the new that William T. Eustis, represented in this company which had been given in exchange court by his executors, had accepted and refor bonds, and that if any bondholder de ceipted for the money which had been clined ultimately to exchange his bonds for awarded him, as his portion, under the instock he could not be compelled to do so, and solvency proceedings, and that the court bethat the net earnings of the company when low, conceding that his cause of action could distributed in the form of dividends or other not be taken away from him, without his wise must be distributed to its stockholders consent, by proceedings under statutes of in. and to the holders of any unexchanged bonds solvency, passed subsequently to the vesting in equal proportions; that if the holders of of his rights, held that the action of Eustis, unexchanged bonds chose to take stock they in so accepting and receipting for his divi. could do so at any time, or they might retain dend in the insolvency proceedings, was a their present possessions and receive their waiver of his right to object to the validity share of the net earnings pro rata with the of the insolvency statutes, and that, accordstockholders.

ingly, the defendants were en tled to the 348) 'It is thus seen that there were two ques.

judgment. tions determined by the state court: One

"The view of the court was that, when the related to the validity of the statutes passed composition was confirmed, Eustis was put subsequently to the execution of the mort to his election whether he would avail himgage, the court holding them valid, and that self of the composition offer, or would reject they did not impair the obligation of the con it and rely upon his right to enforce his debt tract contained in the mortgage. That is a against his debtors notwithstanding their Federal question. The other related to the discharge. deiense of estoppel on account of laches and “In its discussion of this question the court acquiescence, which is not a Federal ques- below cited and claimed to follow the decition. Either is sufficient upon which to base sion of this court in the case of Clay v. Smith, and sustain the judgment of the state court. 3 Pet. 411 [7: 723], where it was held that In such case a writ of error to the state court the plaintiff, by proving his debt and taking cannot be sustained. Eustis v. Bolles, 150 a dividend under the bankrupt laws of LouU. S. 361 [37: 1111]; Rutland Railroad Co. isiana, waived his right to object that the 1. Central Vermont Railroad Co. 159 U. S. law did not constitutionally apply to his 630 [40: 284] ; Seneca Nation v. Christy, 162 debt, he being a creditor residing in another U. S. 283 [40: 970).

staté. But in deciding that it was compeA person may by his acts or omission to tent for Eustis to waive his legal rights, and act waive a right which he might otherwise that accepting his dividend under the inbare under the Constitution of the United solvency proceedings was such a waiver, the States, as well as under a statute, and the court below did not decide a Federal quesquestion whether he has or has not lost such tion. Whether that view of the case was right by his failure to act, or by his action, sound or not, it is not for us to inquire. It is not a Federal one.

was broad enough, in itself, to support_tho In the above case of Eustis v. Bolles the final judgment, without reference to the Fedstate court held that by accepting his divi.'eral question."

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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 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:

And now the foregoing statement and finding as to the facts proven and established 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:

229].

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 is not our privilege to enter.

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 revicwed-Federal right may be
waived-question of waiver is not Federal
question.

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.

2.

1.

3.

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

4.

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.

the formation of corporations by the holders

of bonds was extended so as to include the N ERROR to the Supreme Judicial Court case of railroad corporations where the prin. of that court in favor of the defendant in er- overdue for the space of three years, and by ror, the Somerset Railway, in an action com- an act of March 6, 1883, the provision was menced by it against Lewis Pierce et al. to still further extended so as to apply to the enjoin the further prosecution of certain ac- case in which no interest had been paid tions and for other relief. Dismissed. thereon for more than three years. See sanie case below, 88 Me. 86.

By virtue of the provisions of the Revised The facts are stated in the opinion.

Statutes of 1871, as amended and extended Alessrs. D. D. Stewart and H. B. by the statutes of 1878 and 1883 (both statCleaves for plaintiffs in error.

utes, as will be seen, being subsequent to Messrs. Josiah H. Drummond, Edmund the execution of the mortgage), the holders F. Webb, and Joseph W. Symonds for de- of bonds of the Somerset Railroad Company, fendant in error.

following the method provided by those stat.

utes, and on the 15th day of August, 1883, (642) *Mr. Justice Peckham delivered the formed a new corporation under the name opinion of the court:

of the Somerset Railway. The capital stock This is a writ of error directed to the Su- of this new corporation was $736,648.76, preme Judicial Court of the state of Maine, made up of the principal of $450,000 of the for the purpose of reviewing a judgment of unpaid outstanding bonds, and $286,648.76 that court in favor of the defendant in error, of interest thereon up to the 15th of who was plaintiff below. (88 Me. 86–100.) August, 1883. This was in accordance with The facts necessary to an understanding of the provisions of the statute that the new the case are as follows:

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 purpose of building and operating a railroad bonds and interest. On the 1st of Septembetween 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 annual meeting, voted that the bondholders mentioned. The company thereupon issued should organize a new corporation under the and sold its bonds, secured by the mortgage, statutes of the state, and take possession of to the amount of $450,000, with proper cou- the railroad, and at the same meeting voted pons for interest attached, payable semi- to surrender possession of the road to the annually on the first days of January and new corporation, the Somerset Railway. July in each year, at the rate of seven per these bonds, including some held by the

*The holders of a very large majority of (644) cent, the principal of the bonds becoming due on the first of July. 1891. The proceeds parties in whose interest the plaintiffs in erof the sale of these bonds were applied to the of this corporation, but the holders of all the

ror now act, participated in the formation building, equipping, and operating of the bonds did not so participate, a majority road from Oakland to North Anson, a station between Oakland and the proposed ter being sufficient under the statute for the reg. minus of the road at Solon. In 1876 the

ular formation of the corporation. Bonds road had been completed as far as the village largely exceeding a majority of those which of Anson, twenty-five miles from Oakland, were issued under the mortgage were sur. and it was opened and its cars commenced rendered to the Somerset Railway, and are running in that year between those points.

now held by it, and the stock issued therefor, The company continued to so operate its the amount being at the time the suit herein road until September, 1883. It had, how was instituted $339,400; and the amount of ever, become insolvent some time prior to bonds not surrendered was $110,600, not April first, 1883, and at that time its cou counting overdue coupons. pons for interest on the bonds secured by the

From the time the new company took pos. above-mentioned mortgage had been unpaid session of the railroad it has continued to (843]for more *than three years. At the time operate it as far as it was then completed,

when this mortgage was given, corporations and it has also extended the same some six-
could be formed by the holders of bonds se-teen miles, and as extended it has continued
cured by a railroad mortgage, in the manner to operate it.
provided for by the statute. (Rev. Stat. 1871, To obtain the funds necessary for the
chap. 51.) In 1878, seven years after the ex. completion of the sixteen miles of extension

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