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.

plication and obtained a patent, but that he tiff have ever since remained in possession gave no notice to plaintiff, or any of its pred-thereof, claiming and holding the same as a ecessors in interest, of the obtaining of the part of the Nine Hour Lode Mining Claim; patent until some time in November, 1889. that at the date of the execution and delivery That when the bond for a deed was exe- of the bond, it was expressly agreed between cuted, plaintiff's predecessors in interest were the parties thereto that all of the ground in possession of the premises, and have ever lying to the east of the westerly line of the since been and are yet in possession thereof, strip should be a portion of the Nine Hour holding and using the same as a part of the Lode Mining Claim; that plaintiff is the sucNine Hour Lode Claim; that by mesne con- cessor in interest of Robinson, Huggins, and veyances the title to this claim, including Sterling, the obligees named in the bond, and the portion in dispute in this suit, had come also of De Camp and Eddy, who were coto plaintiff; that it is entitled to a convey- tenants with said obligees in the premises at ance of the premises from Mayger; that May- the date of the execution of the bond; that ger, on or about June 10, 1893, assumed to the mesne conveyances introduced in eviconvey said piece of ground to the St. Louis dence on the part of plaintiff embraced and Mining & Milling Company, which then had were intended to include the ground in quesfull knowledge and notice of the making, ex- tion, and conveyed to the grantees therein ecution, and delivery of the bond for a deed named all of the interest, legal and equit by Mayger, and and of the rights and able, which the grantor or grantors had equities of the Montana Mining Com-in said premises, covering as well their inpany thereunder; that the St. Louis terest in the ground in dispute as in every Company has instituted a number of suits other part and parcel of the Nine Hour Lode in the Circuit Court of the United States, Mining Claim. in which it claims that it is the owner of the premises described in the complaint, and also the right to recover certain sums of money for ores alleged to have been wrongfully extracted therefrom. The bond referred to was appended to the complaint. The prayer was that the court should decree that defendants should convey to plaintiff a good and sufficient deed to the premises in controversy.

That in July, 1893, plaintiff duly demanded a deed to the ground in dispute from defend-[654] ants, which defendants refused to execute; that in June, 1893, Mayger assumed to convey the controverted ground to the St. Louis Mining & Milling Company, but that at the date of his conveyance the St. Louis Company had full notice and knowledge of plaintiff's equities in and to the disputed strip, and of its possession thereof; that defendants wrongfully asserted title to the ground in controversy, and thereby clouded plaintiff's title thereto, which cloud plaintiff had a right to have removed.

The district court concluded as matter of law that plaintiff was entitled to the conveyance prayed for, and that defendants should be enjoined from asserting any right, title or interest in or to the ground in dispute, and from in any manner interfering with the possession or enjoyment thereof by plaintiff.

The answer denied all the material allegations of the complaint, and affirmatively alleged that the adverse claim interposed to the application of Mayger for a patent was for the purpose of harassing and hindering Mayger in obtaining a patent to his mining claim, and that the bond was given contrary to equity, good conscience, and public policy. The case was tried by the district court without a jury, and the court made and filed findings of fact and conclusions of law. It was found that plaintiff's predecessors in in[653]terest *were at the time mentioned in the complaint the owners of, in possession, and entitled to the possession, of the Nine Hour Lode Mining Claim as described, and that the strip of ground in dispute was at the time and continued to be a part of said claim; that the bond was executed and delivered by Mayger to the parties therein named, binding Mayger to convey to them or their assigns the ground in question when Mayger obtained a patent therefor; that it was given as a compromise and settlement of the controversy as to the land now in dispute, and then in litigation between the parties, and for the purpose of fixing and determining the boundary line beween the Nine Hour Lode Mining Claim and the St. Louis Mining Claim, as alleged in the complaint, and that Mayger thereafterwards did obtain a patent covering the premises in dispute; that plaintiffs in the adverse mining suit, on the execution to them of the bond by Mayger, dismissed their action and performed all the conditions of While it is conceded by plaintiffs in error the contract on their part; that at the time that there is no express prohibition on the of the execution of the bond the predecessors transaction involved in the record, it is conof plaintiff were in actual possession of the tended that the contract was contrary to the ground in dispute, and that they and plain-policy of the law, and that the question thus 171 U. S. U. S., BOOK 43. 21

*Mr. Chief Justice Fuller delivered the [654) opinion of the court:


In accordance with the findings of fact and conclusions of law, a decree was entered for plaintiff, and defendants appealed to the supreme court of the state of Montana, by which it was affirmed. [20 Mont. 394] 51 Pac. 824.

This writ of error was then sued out, and defendants in error now move to dismiss the writ, or that the decree be affirmed.

Messrs. Charles J. Hughes, Jr., and W. E. Cullen for defendant in error in favor of motion to dismiss or affirm.

Messrs. W. W. Dixon, Edwin W. Toole,
McConnell, Clayberg, & Gunn, and Thomas
C. Bach for plaintiffs in error in opposition
to motion.

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.

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, was assumed that the contract was not void we are of opinion that there was color for the as in contravention of any statute of the motion, and that the case may properly be United States, or contrary to public policy. disposed of on the motion to affirm. 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 The proposition of plaintiffs in error is patents do not issue in the usual course of that where an application to enter a mining business in the general land office until sevclaim is made, and there is embraced therein eral years after the certificate of entry is land claimed by another, it is the duty of given, and equally well known that nearly the latter to file an adverse claim and there- all the valuable lands in the new states adafter bring in some court of competent juris-mitted since 1841 have been taken up under diction an action to determine the right to the pre-emption laws, and the right to sell the area in conflict, which action must be them freely exercised after the claim was prosecuted to a final judgment or dismissed; proved up, the land paid for, and the certifiand that no valid settlement can be made by cate of entry received. In view of these which such adverse claimant can acquire any facts we cannot suppose, in the absence of an interest in the ground when thereafter pat- express declaration to that effect, that Conented by the applicant. We are not aware gress intended to tie up these lands in the of any public policy of the government which hands of the original owners until the gov sustains this proposition. ernment should choose to issue the patent."

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].

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].

*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.

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

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

[No. 21.]

ber 31, 1898.

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 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 person.' And section 2291, which prescribes the time and manner of final proof, requires that the applicant make 'affidavit that no part of such land has been alienated, except [658]*as provided in section twenty-two hundred and eighty-eight,' which section provides for alienation for church, cemetery, or school purposes, or for the right of way of railroads.' 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 *Parke, Davis, & Company in the name of[659] no express prohibition of alienation, and no forfeiture in case of alienation; yet under the state of Michigan for the manufacture and a corporation organized under the laws of them the homestead right cannot be per-sale of chemical and pharmaceutical prepafected in case of alienation, or contract for rations. The factory is situated in the city alienation, without perjury by the home of Detroit. The corporation has a warehouse steader. There can be no question and depot in the city of New York, and there that this contract contemplated perjury on keeps on hand varying quantities of its manthe part of Anderson, and was designed to ufactured products, which are there sold at thwart the policy of the government in the wholesale in original packages. The concern homestead laws, to secure for the benefit of is represented in New York by John Clay as the homesteader the exclusive benefit of his manager, who is paid a salary. The busihomestead right." carried on in all respects like the ordinary ness of selling the manufactured articles is sales of consigned goods. Clay, in his own ports crude drugs from foreign countries at name, but for the use of the company, imthe 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.

Statement by Mr. Justice Shiras:

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,

State of New York.

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

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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 af firmed.



(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. 8. 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 court.


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

strictly private business is not invalid because a portion of its business is the importa tion and sale of articles in original packages.

IN ERROR to the Supreme Court of the a of that court entered in pursuance of the decision of the Court of Appeals of that state quashing a writ of certiorari and confirming the comptroller's assessment of and tax upon the capital employed within the state, owned by Parke, Davis, & Company, a corporation of Michigan. Affirmed.

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

Upon this state of facts the comptroller of New York imposed for 1894, and five previous 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

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