And set forth in paragraph one:

might remain after the application on the
mortgage of the proceeds from the sale.

"That at all times hereinafter mentioned
the defendant, Third Street & Suburban Rail- The case was carried on appeal to the cir-
way Company, was and it now is a corpora- cuit court of appeals for the ninth circuit,
tion, duly organized and existing under and and the decree below was by that court af
by virtue of the laws of the state of Wash-firmed. 48 U. S. App. 273. And from its
ington, with its principal place of business decree this appeal was allowed.
in the city of Seattle, in said state."

The supplemental bill then stated that the
Western Mill Company, in May, 1884, and
certain other defendants as sureties, made
and delivered to plaintiff their note, to se-
oure the payment of which, and the interest
thereon and attorneys' fees, it executed a cer-
tain mortgage, which plaintiff sought by his
bill to foreclose.

then

The eighth paragraph was as follows: "That on or about the 14th day of October, 1891, the defendant, Western Mill Company, mortgagor herein, by its certain deed of sale, sold said mortgaged premises and every part thereof to the Ranier Power & Railway Company, a corporation organized under the laws of Washington, and having its principal place of business in Seattle; that thereafter, and on or about the 13th day of February, 1895, in the cause of A. P. Fuller v. The Ranier Power & Railway Company, No. pending before this honorable court, Eben Smith, Esq., the duly appointed, qualified, and acting master in chancery in said cause, made, executed, and delivered to A. M. Brockes, Angus McIntosh, and Frederick Bausman, purchasers of said premises, at a sale theretofore had, to satisfy a decree in said cause theretofore rendered by this court, a deed of sale to said mortgaged premises and each and every part thereof; that thereafter, on the 12th day of February, 1895, for a valuable consideration, said Angus McIntosh, A. M. Brookes, and Frederick Bausman [459]duly bargained and sold *by their deed of sale, their right, title, and interest in and to said premises, and every part thereof to the Third Street & Suburban Railway Company, defendant herein, who now claims some interest in or lien upon said mortgaged premises through said deed of purchase, so made subsequent to the commencement of plaintiff's action, but that said interest in or lien upon said property is subsequent, subject, and inferior to the lien of plaintiff's mortguge."

Mr. Frederick Bausman for appellant.
Messrs. J. W. Blackburn, Jr., and
George E. Hamilton for appellee.

Thereupon plaintiff prayed judgment against the parties to the note for the sum alleged to be due with interest and attorneys' fees; that a decree for the sale of the mortgaged premises be entered, the proceeds to be applied in payment of the amount found due on the note and mortgage; that the railway company, and all persons claiming under it, be barred and foreclosed from setting up any claim or equity therein thereafter; and that plaintiff have judgment over for any deficiency on the sale. The defendant, the railway company, answered; a demurrer was sustained to its answer; and a decree was entered against the parties to the note for the amount due thereon and for the sale of the premises mortgaged, with juagment against them for any deficiency; and also for the distribution of any surplus that]

*Mr. Chief Justice Fuller delivered the[459) opinion of the court:

Although the record does not contain the original bill, it is apparent that the jurisdiction of the circuit court was invoked on the ground of diverse citizenship, and that the interest of appellants in the mortgaged[4600 premises was acquired after the commencement of the action.

This supplemental bill made appellant a party defendant as claiming an interest, but the jurisdiction still rested on diversity of citizenship. The decree of the circuit court of appeals was, therefore, made final by the statute, and the appeal cannot be sustained.

But it said that because plaintiff saw fit to set forth the manner in which appellant obtained its interest, and it appeared that appellant claimed under a conveyance from the purchasers at a sale made pursuant to a decree of the circuit court, the jurisdiction was not entirely dependent on the citizenship of the parties. The averments, however, in respect to the acquisition of its interest by appellant, were no part of plaintiff's case, and if there had been no allegation of diverse citizenship the bill unquestionably could not have been retained. The mere reference to the sale and foreclosure could not have been laid hold of to maintain jurisdiction on the theory that plaintiff's cause of action was based on some right derived from the Constitution or laws of the United States.

It is thoroughly settled that under the act of August 13, 1888, the circuit court of the United States has no jurisdiction, either original or by removal from a state court, of a suit as one arising under the Constitution, laws, or treaties of the United States, unless that appears by the plaintiff's statement to be a necessary part of his claim. Tennessee v. Union & Planters' Bank, 152 U. S. 454 [38: 511]; Metcalf v. Watertown, 128 U. S. 586, 589 [32: 543, 544]; Colorado Central Consol. Min. Company v. Turck, 150 U. S. 138 [37: 1030]. If it does not appear at the outset that the suit is one of which the circuit court at the time its jurisdiction is invoked could properly take cognizance, the suit must be dismissed; and lack of jurisdiction cannot be supplied by anything set up by way of defense. And so when jurisdiction originally depends on diverse citizenship the decree of the circuit court of appeals is final, though another ground of jurisdiction may be developed in the course of the proceedings. Ex parte Jones, 164 U. S. 691 [41: 601].

Appeal dismissed.

(401

was also insisted that the bonds were
authorized under sections 1996 to 2000 of
the Code of North Carolina, as enacted
in 1869, and subsequently ratified in 1883;
also that the charter of the railroad com-
pany, as amended in 1879, and again in 1881,
authorized the issuing of the bonds. The

(See S. C. Reporter's ed. 461–464.)

Federal question-construction of the Con- bonds were in fact issued in 1890, and there-
stitution and laws of a state.
fore subsequent to all the legislation above
referred to. The bonds recited on their face
that they were issued under the act of 1879.

As grounds for their contention that the
bonds were invalid, the plaintiffs below as-
serted that neither the above-mentioned act
of 1879, nor the amended act of 1881, had
been constitutionally passed; that the bonds
were not issued under the ordinance adopted
by the constitutional convention; and that
by the doctrine of estoppel the bondholders
could not claim that the bonds were issued
under such ordinance or by virtue of any
other authority than that recited on their
face, viz., the act of 1879.

[No. 642.]

The supreme court of the state held that Submitted February 20, 1899. Decided the bonds were void because the acts unMarch 20, 1899. der which they were issued were not valid laws, not having been passed in the manner directed by the Constitution. The court further held that the bonds were not authorized by the above sections of the Code, and that as they purported, by recitals on their face, to have been issued under the act of 1879, the bondholders were estopped from setting up any other authority for their issue, such as the ordinance of the constitutional convention above mentioned.

J. M. TURNER et al., Plffs. in Err.,

v.

BOARD OF COMMISSIONERS OF
WILKES COUNTY et al.

1. A Federal question which will support a writ of error to a state court is not raised by a decision of a state court against the valid ity of a state statute under which bonds were Issued, although it had held the statute valid

before their issue, where its decision is based upon the Constitution and laws of the state. 2. This court is bound by the decision of a state court in regard to the meaning of the Constitution and laws of its own state; and Its decision upon such state of facts raises no Federal question.

IN

N ERROR to the Supreme Court of the State of North Carolina to review a judgment of that court in an action brought by the Board of Commissioners of Wilkes county et al. against Clarence Call, treasurer of said county adjudging that certain bonds is sued by the county of Wilkes in payment of its subscription to the stock of the Northwestern North Carolina Railroad Company were void by reason of the invalidity of the laws under which they were issued. On motion to dismiss or affirm. Dismissed.

and from the opinion in that case the follow- | 3. ing extract is taken (page 111 [40: 94]):

4.

"The distinction, as to the authority of this court, between writs of error to a court of the United States and writs of error to the highest court of a state, is well illustrated by two of the earliest cases relating to municipal bonds, in both of which the opinion was delivered by Mr. Justice Swayne, and in each of which the question presented was whether the Constitution of the state of Iowa permitted the legislature to authorize municipal corporations to issue bonds in aid of the construction of a railroad. The supreme court of the state, by decisions made before the bonds in ques

tion were issued, had held that it did; but,

by decisions made after they had been issued, held that it did not. A judgment of the district court of the United States for the district of Iowa, following the later decisions of the state court, was reviewed on the merits and reversed by this court, for misconstruction of the Constitution of Iowa. Gelpcke v. Dubuque, 1 Wall. 175, 206 [17:520, 526]. But a writ of error to review one of those [464]decisions of the supreme court of Iowa was dismissed for want of jurisdiction, because, admitting the Constitution of the state to be a law of the state within the meaning of the provision of the Constitution of the United States forbidding a state to pass any law impairing the obligation of contracts, the only question was of its construction by the state court. Mississippi & M. Railroad Co. v. McClure, 10 Wall. 511, 515 [19: 997, 998].

An example of the jurisdiction exercised by this court when reviewing a decision of a Federal court with regard to the same contract clause is found in the same volume. Folsom v. Ninety Six, 159 U. S. 611, 625 [40: 278, 283].

This case is governed by the principles laid down in Central Land Company v. Laidley, supra, and the writ of error must, therefore, be dismissed.

UNITED STATES, Appt.,

บ.

NEW YORK INDIANS.

(See S. C. Reporter's ed. 464-473.) Findings of court of claims-when case will not be remanded-power of said courtwhen an appeal will not be entertained.

1.

The findings of the court of claims in an action at law determine all matters of fact, like the verdict of a jury; and where there is any evidence of a fact which said court finds, and no exception is taken, its finding is

final.

The court of claims is not at liberty to redetermine who were parties to the treaty of Buffalo Creek, and entitled to the benefits of its provisions, after that has been determined by this court on a former appeal.

2. This court will not remand a case to the
court of claims with directions to return
whether certain distinct propositions in re-
quests for findings of fact, presented to that
court at the trial of the case, were established

and proved by the evidence, if the object of
its being so remanded is to ask this court to
determine questions of fact upon the evidence.

An appeal will not be entertained by this court from a decree entered in an inferior court, in exact accordance with the mandate of this court upon a previous appeal.

[No. 697.]

Motion for additional findings submitted January 30, 1899. Motion to dismiss or affirm submitted February 20, 1899. Decided March 20, 1899.

APPEAL from a of the

Court of Claims in favor of the claimants, the New York Indians, for the recovery from the United States of the amount received by it for the Kansas lands set apart for said Indians and subsequently sold by the United States. On motion to dismiss or affirm and also on motion by the United States for additional findings. Dismissed.

See same case on former appeal 170 U. 8. 1, 42 L. ed. 927.

Statement by Mr. Justice Brown:

This case arose from a motion by the Indians to dismiss the appeal of the United States for want of jurisdiction, or, in the alternative, to affirm the judgment of the court of claims, upon the ground that the question involved is so frivolous as not to need further argument; and also from a counter motion by the United States for an order upon the court of claims to make a further finding of facts.

*By an act of Congress, passed January [465) 28, 1893 (27 Stat. at L. 426), the court of claims was authorized to hear and determinc, and to enter up judgment upon the claims of the Indians "who were parties to the treaty of Buffalo Creek, New York," of January 15, 1838, to enforce an alleged liability of the United States for the value of certain lands in Kansas, set apart for these Indians and subsequently sold by the United States, as well as for certain amounts of money agreed to be paid upon their removal.

In its findings of fact the court of claims decided that the Indians described in the jurisdictional act, above referred to as "the New York Indians, being those Indians who were parties to the treaty of Buffalo Creek, New York, on the 15th of January, 1838, were the following: Senecas, Onondagas, Onondagas residing on the Seneca reservation, Onondagas at Onondaga, Cayugas, Cayugas residing on the Seneca reservation, Cayuga Indians residing in the state of New York, Tuscaroras, Tuscaroras residing in the state of New York, Oneidas residing in New York, at Green Bay (Wisconsin), and in the Seneca reservation, Oneidas, St. Regis, St. Regis in New York, the American party of the St. Regis resided in the state of New York, Stockbridges, Munsees, Brothertowns."

Upon the whole case, however, the court of claims found as a conclusion of law from the facts that the Indians had abandoned their claim, and accordingly dismissed their

49

769

petition. On appeal to this court, under the | the court that the court of claims be ordered act of Congress above mentioned, the judg- to further find and certify to this court: ment of the court of claims was reversed "First. What constituted the Onondagas (170 U. S. 1 [42: 927]), this court being of at Onondaga, Onedias at Green Bay, Stockopinion: bridges, Munsees, and Brothertowns, parties to the treaty of Buffalo Creek, as proclaimed April 4, 1840;

1. That the title acquired by the Indians under the treaty was a grant in præsenti of a legal title to a defined tract, described by metes and bounds, containing 1,824,000 acres in the now state of Kansas;

2. That there was no uncertainty as to the land granted or as to the identity of the grantees;

3. That the tribes for whom the Kansas lands were intended as a future home were the Senecas, Onondagas, Cayugas, Tuscaroras, Oneidas, St. Regis, Stockbridges, Mun[466]sees, and Brothertowns, *residing in the state of New York, as found in the first finding of fact by the court of claims;

4. That the grant to the Indians was of the entire tract as specified in article two of the treaty, and not an allotment to them of 320 acres for each emigrant;

5. That the government had received the full consideration stipulated by the treaty, so far as such consideration was a valuable one for the Kansas lands, and had neglected to render any account of the same;

6. That the Indians had neither forfeited nor abandoned their interest in the Kansas lands, and that they were entitled to a judg

ment.

Thereupon the case was remanded to the court of claims with instructions "to enter a new judgment for the net amount actually received by the government for the Kansas lands, without interest, less any increase in value attributable to the fact that certain of these lands were donated for public purposes, as well as the net amount which the court below may find could have been obtained for the lands otherwise disposed of, if they had all been sold as public lands, less the amount of land upon the basis of which settlement was made with the Tonawandas, and less 10,240 acres allotted to the thirty-two New York Indians as set forth in finding 12, together with such deductions as may seem to the court below to be just, and for such other proceedings as may be necessary and in conformity with this opinion.”

"Second. Whether or not the Oneidas at Green Bay, Stockbridges, Munsees, and Brothertowns resided in the state of New[468] York when the treaty of Buffalo Creek was proclaimed, or when they became parties thereto."

Messrs. L. A. Pradt, Assistant Attorney General, and Charles C. Binney for appellant, on motion to dismiss or affirm.

Mr. John K. Richards, Solicitor General, for appellant, on motion for an order to the court of claims to make additional findings of fact.

Messrs. Guion Miller and Jonas H. McGowan for appellees on both the above motions.

*Mr. Justice Brown delivered the opinion[468] of the court:

As a disposition of either one of these motions will practically dispose of the other, both may properly be considered together.

The preamble to the treaty of Buffalo Creek of January 28, 1838 (7 Stat. at L 550), recites that "the following articles of a treaty are entered into between the United States of America and the several tribes of the New York Indians, the names of whose chiefs, headmen, and warriors are hereto subscribed, and those who may hereafter assent to this treaty in writing, within such time as the President shall appoint." The second article of the treaty also recites that "it is understood and agreed that the above described country" (the land ceded) "is intended as a future home for the following tribes, to wit: The Senecas, Onondagas, Cayugas, Tuscaroras, Oneidas, St. Regis, Stockbridges, Munsees, and Brothertowns residing in the state of New York, and the same is to be divided equally among them according to their respective numbers, as mentioned in the schedule hereunto annexed.” The treaty purports to be signed by the headIn obedience to this mandate the court of men of the Senecas, Tuscaroras, Oneidas reclaims on November 14, 1898, made certain siding in the state of New York as well as further findings of fact, set forth in the mar- at Green Bay, St. Regis, Onondagas residing [467]gin,† and as a conclusion of law decreed* that on the Seneca reservation, the principal Onthe claimants recover from the United States ondaga warriors, Cayugas and the princithe sum of $1,967,056; whereupon the Unit-pal Cayuga warriors; but the schedule, imed States took this appeal, and now move

†Findings.

Assuming that the claimants were entitled to 1,824,000 acres of land under the treaty of January 15, 1838, the court finds that of these lands the defendant sold 84,453.29 acres, for which they received the sum of $1.25 per acre. They otherwise disposed of the balance of said lands in granting the same for public purposes, and for the lands disposed of for public purposes they could have obtained the sum of $1.25

per acre.

The land at $1.25 per acre amounts to the sum of $2,280,000. The court finding that

mediately following the signatures, conthe defendants could have sold the land at $1.25 does not take into consideration any increase value given to such lands because of any donation of land for public purposes; and the court finds that the price at which the defendants sold the land was not increased because of any donation of other lands for public purposes. The court finds that the cost and expense of surveying and platting said lands was the sum of $45,600. The court finds that the number of acres allowed the Tonawanda band of the claimants in the settlement of their claim was 208,000 acres, which, at the price of $1.25 per acre,

tains also the names of the Stockbridges, | tion than they can behind an act of ConMunsees, and Brothertowns. The conimis- gress." sioner on behalf of the United States certifies that this schedule was made before the [469]execution of the treaty, Following this there are certain certificates by the commissioner to the effect that the treaty was assented to by the Senecas, Tuscaroras, St. Regis,Oneidas, Cayugas, and Onondagas. On January 22, 1839, the President sent the treaty to the Senate with the following message: