raised is necessarily a Federal question. | sideration was passed on in a suit brought [655] Granting that this is so, and that the mo- to enforce its specific performance, and it

tion to dismiss must therefore be overruled, we are of opinion that there was color for the motion, and that the case may properly be disposed of on the motion to affirm.

The supreme court of Montana ruled that, in the absence of statutory prohibition, there was no reason in law or equity why the contract sought to be enforced should be held illegal, and we concur in this disposition of the Federal question suggested.

The public policy of the government is to be found in the Constitution and the laws, and the course of administration and decision. License Tax Cases, 5 Wall. 462 [18: 497]; United States v. Trans-Missouri Freight Association, 166 U. S. 340 [41: 1027].

was assumed that the contract was not void as in contravention of any statute of the United States, or contrary to public policy. In Myers v. Croft, 13 Wall. 291 [20: 562], this court was asked to hold that the prohi bition against alienation found in the last clause of the 12th section of the pre-emption act of 1841 extended from the date of entry to the actual issue of patent. This the court declined to do, and decided that the object of the act was attained when the pre-emptor went with clean hands to the land office and proved up and paid for his land. And the court said: "Restrictions upon the power of alienation after this would injure the preemptor, and would serve no important purpose of public policy. It is well known that patents do not issue in the usual course of business in the general land office until several years after the certificate of entry is given, and equally well known that nearly all the valuable lands in the new states ad

The proposition of plaintiffs in error is that where an application to enter a mining claim is made, and there is embraced therein land claimed by another, it is the duty of the latter to file an adverse claim and thereafter bring in some court of competent juris-mitted since 1841 have been taken up under diction an action to determine the right to the area in conflict, which action must be prosecuted to a final judgment or dismissed; and that no valid settlement can be made by which such adverse claimant can acquire any interest in the ground when thereafter patented by the applicant. We are not aware of any public policy of the government which sustains this proposition.

Where there is a valid location of a mining claim, the area becomes segregated from the public domain and the property of the locator. There is no inhibition in the mineral lands act against alienation, and he may sell it, mortgage it, or part with the whole or any portion of it as he may see fit. Forbes v. Gracey, 94 U. S. 766 [24: 314]; Manuel v. Wulff, 152 U. S. 510 [38: 534]; Black v. Elkhorn Mining Company, 163 U. S. 449 [41: 223].

The location of the Nine Hour Lode was in all respects sufficient and valid. When the dispute afterwards arose between Robinson and Mayger as to a portion of it, there was nothing to compel the filing of an adverse claim. The settlement made gave Robinson an equitable title immediately, and ultimately he was to have the complete legal title, to a piece of ground which, it seems, rightfully belonged to him. The government was not [656]defrauded in any way, nor was there any legal or moral fraud involved in the transaction. The settlement and adjustment of the dispute with reference to the right of possession appears upon its face to have been satisfactory to the parties when made, and should be upheld unless contravening some statute or some fundamental principle of law recognized as the basis of public policy. There was no such statute, and settlements of matters in litigation, or in dispute, without recourse to litigation, are generally favored, and are apparently of frequent occurrence in regard to mining land claims; nor is there anything in the decisions of this court to throw doubt on their validity.

In Ducie v. Ford, 138 U. S. 587 [34: 1091], a contract of the character of that under con

the pre-emption laws, and the right to sell them freely exercised after the claim was proved up, the land paid for, and the certificate of entry received. In view of these facts we cannot suppose, in the absence of an express declaration to that effect, that Congress intended to tie up these lands in the hands of the original owners until the government should choose to issue the patent."

*In Davenport v. Lamb, 13 Wall. 418 [20:[657] 655], a covenant made by certain grantors "that if they obtain the fee simple to said property from the government of the United States, they would convey the same to the grantee, his heirs or assigns, by deed of general warranty," made with reference to a tract of land taken up under what was known as the Oregon donation act, was upheld although the point that the covenant was against public policy was distinctly made.

In Lamb v. Davenport, 18 Wall. 307 [21: 759], Mr. Justice Miller, speaking of claims under that act, said: "They were the subjects of bargain and sale, and, as among the parties to such contracts, they were valid. The right of the United States to dispose of their own property is undisputed, and to make rules by which the lands of the government may be sold or given away is acknowledged; but, subject to these well-known principles, parties in possession of the soil might make valid contracts, even concerning the title, predicated upon the hypothesis that they might thereafter lawfully acquire the title, except in cases where Congress has imposed restrictions on such contracts."

And to the same effect see Gaines v. Molen, 30 Fed. Rep. 27, where the subject was considered by Mr. Justice Brewer, then circuit judge.

Anderson v. Carkins, 135 U. S. 483 [34: 272], involved a contract made by a homesteader to convey a portion of a tract when he should acquire title thereto from the United States, and was disposed of on different grounds. It was stated in the opinion that "the theory of the homestead law is


that the homestead shall be for the exclusive
benefit of the homesteader. Section 2290 of
the Revised Statutes provides that a person
applying for the entry of a homestead claim
shall make affidavit that, among other

strictly private business is not invalid because a portion of its business is the importation and sale of articles in original package.

[No. 21.]

ber 31, 1898.

things, such application is made for his ex- Argued April 20, 21, 1898. Decided Octoclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other State of New York to review a judgment N ERROR to the Supreme Court of the person.' And section 2291, which prescribes of that court entered in pursuance of the dethe time and manner of final proof, requires cision of the Court of Appeals of that state that the applicant make 'affidavit that no part of such land has been alienated, except the comptroller's assessment of and tax upon quashing a writ of certiorari and confirming [658] as provided in section twenty-two hundred the capital employed within the state, owned and eighty-eight,' which section provides for

See same case below, 91 Hun, 158, 149 N.
Y. 608.

Statement by Mr. Justice Shiras:

alienation for church, cemetery, or school by Parke, Davis, & Company, a corporation purposes, or for the right of way of rail- of Michigan. Affirmed. roads.' The law contemplates five years' continuous occupation by the homesteader, with no alienation except for the named purposes. It is true that the sections contain no express prohibition of alienation, and no forfeiture in case of alienation; yet under them the homestead right cannot be perfected in case of alienation, or contract for alienation, without perjury by the homeThere can be no question that this contract contemplated perjury on the part of Anderson, and was designed to thwart the policy of the government in the homestead laws, to secure for the benefit of the homesteader the exclusive benefit of his homestead right."


In the case at bar there was no statute which, in express terms, or by any fair implication, forbade the making of such a contract as that proceeded on here. Decree affirmed.



*Parke, Davis, & Company in the name of[659] a corporation organized under the laws of the state of Michigan for the manufacture and sale of chemical and pharmaceutical preparations. The factory is situated in the city of Detroit. The corporation has a warehouse and depot in the city of New York, and there keeps on hand varying quantities of its manufactured products, which are there sold at wholesale in original packages. The concern is represented in New York by John Clay as manager, who is paid a salary. The business of selling the manufactured articles is carried on in all respects like the ordinary sales of consigned goods. Clay, in his own name, but for the use of the company, imports crude drugs from foreign countries at the port of New York. Such crude drugs are, in large part, sent to the Detroit factory for use, but some portions are sold in the original packages in the city of New York.

The corporation pays an annual rental for its place of business in New York of $12,500, employs there a force of over fifty persons,

JAMES A. ROBERTS, Comptroller of the and expended for the New York branch an

State of New York.

(See S. C. Reporter's ed. 658-683.) Tax on capital of a corporation-Federal question question of fact-tax valid.

1. The equal protection of the laws is not de-
nied to a foreign corporation which manu-
factures goods in other states and sends them
into the state for sale, by a tax on the amount

of capital employed by it within the state,
because of an exemption of corporations
which are wholly engaged in manufacturing
within the state, when the statute makes no
discrimination between foreign and domestic

2 Error in the estimate of the amount of
capital employed in a state and subject to
tax therein does not present a Federal ques-
tion on writ of error to a state court.

The relation of a person to the business of a corporation is one of fact, which is not open to inquiry on writ of error to a state


4. A franchise or business tax on the amount of capital stock employed within the state by a foreign corporation organized to conduct

nually, for the years 1890 to 1894, inclusive,
from $102,000 to $172,000. The property
owned in New York, in the way of business
fixtures, is valued at $15,000; the average
stock of goods sent from Michigan and car-
ried in New York during those years was
$50,000. It also employed in New York
during that period a continuing capital,
used in the purchase and sale of crude drugs,
of from $23,000 to $62,000 per year.

Upon this state of facts the comptroller of
New York imposed for 1894, and five pre-
vious years, an annual tax based upon the
sum of $90,000 as "capital employed within
the state."

*At the time of the imposition of this tax[660] the provisions of the statute here drawn in question were as follows (Laws 1880, chap. 542, § 3, as amended by Laws 1881, chap. 361; Laws 1885, chap. 359; Laws 1889, chaps. 193, 353):

"Every corporation, joint-stock company, or association whatever, now or hereafter incorporated, organized or formed under, by or pursuant to law in this state or in any other state or country, and doing business in this state, except only savings banks and in

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 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,
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-
holders; and they alleged that the rights of
pany formed for the benefit of all the bond-
the bondholders who took no part in the
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-


[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 1 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


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-

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 men-

tioned 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, al-
lowed, 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 mort-
gage by the new company to secure the pay-

The supreme judicial court of Maine upon these issues held: "(1) That the new company was legally organized; that the various acts of the legislature of Maine, passed subsequently to the execution of the mortgage, did not impair the obligations of the contract 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

Mr. Justice Shiras, in delivering the opinion of the court, said:

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 disrated 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 prov esced in by all the trustees. It is too late ínce of this court to inquire about. 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 improve ments; 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 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 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 declined 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

"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.

stockholders. [648] *It is thus seen that there were two questions determined by the state court: One

"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.

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. v. 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.

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

"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 Federal question."

Eustis had a right which was protected by
the Constitution of the United States. This
right, the state court held, he had waived by
his action, and this court said whether the
state court was right or not was not a Fed-Submitted October 10, 1898. Decided Octo
eral question.

[No. 305.]

ber 31, 1898.

In Seneca Nation v. Christy, supra, it was [650]held by *the state court that even if there were a right of recovery on the part of the plaintiffs in error because the grant of 1826 was in contravention of the Constitution of the United States, (which the court held was not the case), yet that such recovery was barred by the New York statute of limitations. This court held that as the judgment of the state court could be maintained upon the latter ground, it was without jurisdiction because the decision of the state court upon that ground involved no Federal ques


In this case there being two distinct grounds upon which the judgment of the state court was based, each of which is sufficient, and one of which involves no Federal question, we must, upon the authority of the cases above cited, hold that this court is without jurisdiction, and the writ of error must be dismissed.

Mr. Justice Harlan and Mr. Justice White were of opinion that the decree should be affirmed.

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


JOHN AYER et al.

(See S. C. Reporter's ed. 650.)
Pierce v.Somerset Railway, ante, p. 316, followed.
[No. 13.]

IN ERROR to the Supre
N ERROR to the Supreme Judicial Court

This case was argued with Pierce v. Somerset Railway, ante, p. 316.

Messrs. D. D. Stewart and H. B. Cleaves for plaintiffs in error.

Messrs. Josiah H. Drummond, Edmund F. Webb, and Joseph W. Symonds for de fendants in error.

That Mayger applied to the United States
land office at Helena for a patent to the St.
Louis Lode Mining Claim, owned by him,

Argued October 11, 12, 1898. Decided Octo- and that in the survey he caused to be made
ber 31, 1898.
of his claim he included that part of the Nine
Hour Lode Mining Claim described in the
complaint; whereupon an action was com-
menced by Robinson and Huggins against
Mayger in the district court of the third ju
dicial district of the then territory of Mon-
tana to determine the right to the possession
of the particular premises. That on said 7th
of March, for the purpose of settling and
compromising that action, and settling and
agreeing upon the boundary lines between
the Nine Hour Lode Mining Claim and the
St. Louis Lode Mining Claim, Mayger made,
executed, and delivered to Robinson, Hug-
gins, and Sterling a certain bond for a deed,
whereby, in consideration of the compromise
and settlement of the action and the with-
covenanted and agreed that when he should
drawal of the protest and adverse claim, he
obtain a patent as applied for, he would, on
demand, make, execute, and deliver to Rob-

MONTANA MINING COMPANY, Limited. inson, Huggins, and Sterling, or their assigns,

a good and sufficient deed for the premises [652]
described in the complaint; and thereupon
Robinson, Huggins, and Sterling dismissed
their said action, withdrew their adverse
claim, and performed all of the conditions of
the bond on their part.

This writ of error is controlled by the decision in the case just announced. The writ will, therefore, be dismissed.

COMPANY of Montana, and Charles May-
ger, Plffs. in Err.,

patented by the applicant, is valid, in the ab-
sence of any statutory provision.


State of Montana tu review a decree of ERROR the Supreme Court of that court affirming the decree of the District Court of the First Judicial District of the State of Montana in and for the County of Lewis and Clarke in favor of the plaintiff, the Montana Mining Company, in an action brought by it against the St. Louis Mining & Milling Company of Montana et al. for a decree that defendants shall convey to plaintiff by a good and sufficient deed a portion of a mining claim. On motion to disiniss or affirm. Affirmed.

See same case below, 20 Mont. 394.


(See S. C. Reporter's ed. 650-658.) Compromise as to mining claim, when valid. ▲ compromise of a dispute as to a mining claim, whereby an action to determine the right thereto is dismissed, in consideration of an interest in the ground when thereafter

Statement by Mr. Chief Justice Fuller:

*This was a suit for specific performance[651] brought by the Montana Mining Company against the St. Louis Mining & Milling Company of Montana and Charles Mayger in the district court of the first judicial district of the state of Montana, in and for the county of Lewis and Clarke.

The complaint alleged that on March 7, A. D. 1884, plaintiff's predecessors in interest, Robinson, Huggins, Sterling, DeCamp, and Eddy, were the owners of and in possession, and legally entitled to the use, occupation, and possession, of a certain portion of the Nine Hour Lode and Mining Claim, which embraced in all an area of 12.844.5 feet, together with the minerals therein contained.

That Mayger then proceeded with his ap-
171 U. S.

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