[143] [144) This such order as to costs as shall be just, but the | if the necessary citizenship of the parties c Under the Act of 1789, the jurisdiction of the Courts of the United States, in suits by assignees of choses in action, was confined within narrow limits, and there was comparatively little danger of collusion to create a case of that character cognizable by those courts, because, if the owner of the claim could sue in his own name, there would ordinarily be no motive for transferring it to another to bring the action. In that Act promissory notes and inland bills of exchange, the form of negotiable securities most used in the transaction of ordinary business by citizens of the United States, were included in the prohibition of suits by assignees. The subject of colorable transfers to create a case for the jurisdiction of the Courts of the United States was presented for the most part in suits for the recovery of real property, when a conveyance had been made by a citizen of the State in which the suit must be brought to a citizen of another State. At a very early day it was held in this class of cases that the citizenship of the parties could not be put in issue on the merits, but that it must be brought forward at an earlier stage in the proceedings by a plea in abatement, in the nature of a plea to the jurisdiction, and that a plea to the merits was a waiver of such a plea to the jurisdiction. De Wolf v. Rabaud, 1 Pet., 498; Evans v. Gee, 11 Pet., 83; Sims v. Hundly, 6 How., 1; Smith v. Kernochen, 7 How., 216; Jones v. League, 18 How., 81 [59 U. S., bk. 15, L. ed. 264]; De Sobry v. Nicholson, 3 Wall., 423 [70 U. S., bk. 18, L. ed. 264]. And upon the question of transfer it was uniformly held that, if the transaction was real and actually conveyed to the assignee or grantee all the title and interest of the assignor or grantor in the thing assigned or granted, it was a matter of no importance that the assignee or the grantee could sue in the Courts of the United States when his assignor or grantor could not. A suit by such an assignee or grantee would present, in reality, a controversy between the plaintiff on the record and the defendants. McDonald v. Smalley, 1 Pet., 620; Smith v. Kernochen, supra; Barney v. Baltimore, 6 Wall., 288 [73 U. S., bk. 18, L. ed. 827]. But it was equally well settled that if the transfer was fictitious, the assignor or grantor continuing to be the real party in interest, and the plaintiff on record but a nominal or colorable party, his name being used only for the purpose of jurisdiction, the suit would be essentially a controversy between the assignor or grantor and the defendant, notwithstanding the formal assignment or conveyance, and that the jurisdiction of the court would be determined by their citizenship rather than that of the nominal plaintiff. Maxwell v. Levy, 2 Dall., 381; S. C. 4 Dall., 330, decided by Mr. Justice Iredell and Peters, J., in the Pennsylvania Circuit in 1797. Smith v. Kernochen, supra; Barney v. Baltimore, supra. Such was the condition of the law when the Act of 1875 was passed, which allowed suits to be brought by the assignees of promissory notes negotiable by the law merchant, as well as of foreign and domestic bills of exchange, We are clearly of opinion that this case falls the coupons now in suit were - al bought as early as 1871 or ers of the State of Maine, who held bends themselves when this suit Their purchases were made while ang in the courts of the State to y of the bonds. On the 27th of the highest court of the State 1 that the bonds were inoperafor want of constitutional power orporation to issue them. Almost er's decision these coupons, to $1.922, were collected from vabonds, all residents of the Vilgo and citizens of Maine, and rate from the bonds, to the a citizen of Massachusetts, ment by which the plaintiff t of the holders of the coupons ble promissory note for $500, years from date, with interest, as a further consideration for said NATHAN FLETCHER AND JOHN D. (See S. C. Reporter's ed., 127, 128.) Judgments when final. A judgment is final for purposes of a writ of error ERROR to the Supreme Court of the State of California. The case is sufficiently stated by the court. Brainerd, for defendants in error, in support of motions. f he succeeded in collecting the thereof he would pay the agent, they was got from the corporacent of the net amount collected This suit, begun July 1, 1880, if the plaintiff, is the result of that It is a suit for the benefit of the bonds, They are to receive from half of the net proceeds of the Lave created by their transfer of the red together for that purpose. rown in reality, though they that the plaintiff may retain one the collects for the use of his name in collecting. It is true the aced a purchase in the papers *****d, and that the plaintiff gave K but the time for payment was * Tears, when it was, no doubt, salt of the suit would be known. was paid, and as the note was not That judgment is final for the purposes of a clear the parties intended to writ of error to this court, which terminates of the whole matter in their the litigation between the parties on the merits that if the plaintiff failed to re- of the case, so that, if there should be an afSy be could be released from his firmance here, the court below would have In the language of Mr. Justice nothing to do but to execute the judgment it the court in Detroit v. Dean, had already rendered. Bostwick v. Brinkerhoff, 4k 27 L. ed. 302], applied to 106 U. S. 3 [bk. 27, L. ed. 73], and the numer, the transfer of the coupons ous cases there cited. The judgments in these 4 trivance, a pretense, the reLove arrangement to create" in ended, and the rights of the parties on the mercases are of that character. The litigation is tntiff “a fictitious ground of its have been fully determined. Nothing re"on" so as to get a re-examina-mains to be done but to require the inferior sition of the question decided court to perform the ministerial act of entering Ders of the coupons by the the judgments in that court which have been tunal of the State. Harres ordered. This is but carrying the judgment of 4U. S., 459 [bk. 26, L. ed. 832], the Supreme Court, which has been rendered, Keras, 106 U. S., 586 [bk. 27. L. into execution. Nothing is left to the judicial Tipv. Stebbins, 109 U. discretion of the court below. The cases relied Led. 956). on in support of the motions to dismiss were all judgments or decrees of reversal, with leave for further proceedings in the inferior court. Such judgments are not final, because something yet remains to be done to complete the litigation. The motion in each of the cases is overruled. True copy. Test: Mr. W. J. Johnston, for plaintiff in error, ion of the court: These motions are made on the ground that y in answer to the first that the plaintiff cannot in in the Circuit Court upon Jete de inred upon. ment of the Circuit Court is conse- - in eas muihvat prejudice. James H. McKenney, Clerk, Sup. Court, U. S. [128] [133] [134] DETROIT CITY RAILWAY COMPANY, | alteration, amendment or repeal shall not oper 0. JACOB GUTHARD. (See 8. C., Reporter's ed., 183-187.) ate as an alteration or amendment of the corpo rate rights of companies formed under it, un less specially named in the Act so altering o amending this Act, nor shall the dissolution o any such company take away or impair any remedy given for or against said corporation - Jurisdiction-review of the judgments of state its stockholders or officers or any liability courts-federal question. 1. The jurisdiction of this court for the review of a judgment of the highest court of a State depends on the decision by that court, of one or more of the questions specified in § 709, R. S., and in the way there mentioned. 2. To give this court jurisdiction it must appear affirmatively on the face of the record, not only that a federal question was raised and presented to the highest court of the State for decision, but that it was decided, or that its decision was necessary to the judgment or decree rendered in the case. [No. 923.] Submitted Mar. 2, 1885. Decided Mar. 30,1885. which shall have been previously incurred." Section 22 of this Act was repealed March 13, 1882. In the repealing Act the Detroit City Railway Company was not specially named. law was enacted. This law provided that al On the 14th of March, 1882, a general tax property within the jurisdiction of the State no expressly exempt should be subject to taxation and that all corporate property, except wher some other provision is made by law, should be assessed to the corporation as to a natural per son in the name of the corporation. Under the authority of this last law, the City of Detroit assessed a tax on the property of the ERROR to the Supreme Court of the State Railway Company, and Guthard, the receive IN Michigan. On motion to dismiss. The history and facts of the case appear in the opinion of the court. See, also, 51 Mich., 180. Mr. Chief Justice Waite delivered the opinion of the court: This is a motion to dismiss a writ of error to the Supreme Court of Michigan on the ground that the record does not show that any federal question is involved. The case is this: The Detroit City Railway Company was organized in May, 1863, under a general law of Michigan to provide for the construction of train railways, passed February 13, 1855, to operate a street railway in Detroit. Article 15, § 1, of the Constitution of the State, which went into effect January 1, 1851, is as follows: "Corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes. All laws passed pursuant to this section may be amended, altered or repealed." Sections 22 and 31 of the law under which "Section 22. Each and every railway com- NOTE.-Jurisdiction-review of federal questions arising in state courts. See Matthews v. Zane, 8 U. 8. (4 Cranch), 882, bk. 2, 654, note; Martin v. Hunter, 14 U. 8. (1 Wheat.), 804, bk. 4, 97, note: Williams v. Norris, 26 U. 8. (12 Wheat.), 117, bk. 6, 571, note. of taxes for the city, on failure of the Company to comply with his demand for payment, in regular course of his proceeding for the col lection, levied upon sixty-one horses to sell at public auction and make the money. The Company thereupon brought an action of re plevin for the recovery of the horses. Upon the trial of this action the only question in dis pute was as to the validity of the tax. The Supreme Court of the State, on writ of error, decided that the tax was valid, and gave judg ment accordingly. To reverse that judgment this writ of error was brought. The rule which governs our jurisdiction in this class of cases is thus stated by Mr. Justice Miller for the court in Bridge Proprietors v. Hoboken Co., 1 Wall., 143 [68 U. S., bk. 17, L. ed. 576]: The court must be able to see clearly, from the whole record, that a certain provision of the Constitution or Act of Congress was relied on by the party who brings the writ of error, and that the right thus claimed by him was denied." In Crowell v. Randell, 10 Pet., 398, one of the propositions "established,' after a careful review of the cases, was, "that it is not sufficient to show that a question might have arisen or been applicable to the case, unless it is further shown, on the record, that it did arise, and was applied by the State Court in the case." And, at the last term, in Chouteau v. Gibson, 111 U. S., 200 [bk. 28, L. ed. 400], it was said: "From the beginning it has been held that, to give us jurisdiction in this class of cases, it must appear affirmatively on the face of the record, not only that a federal question was raised and presented to the highest court of the State for decision, but that it was decided or that its decision was necessary to the judgment or decree rendered in the case." doch v. Memphis, 20 Wall., 590, 636 [87 U. S., bk. 22, L. ed. 429, 444]. Mur The reason of this rule is obvious. Our jurisdiction for the review of a judgment of the highest court of a State depends on the decision by that court of one or more of the questions specified in section 709 of the Revised Statutes, and in the way there mentioned. If there ha been no such decision in the suit, there can be no re-examination of the judgment here. It is what was actually decided that we are to con what might have been decided; and | BENJAMIN BUTTERWORTH, sdiction must appear affirmatively It is not enough to find by searchjadzment that the requisite question ave been raised and presented for demust appear that it was actually Le Diactally decided. Brown v. Colo4. 8., [bk. 27, L. ed. 133]. sioner of Patents, Appt., v. SAMUEL HILL et al. (See S. C., Reporter's ed., 128-133.) Commis Jurisdiction-commissioner of patents—where only to apply this well established 1. Section 739, R. S., providing that no civil suit 3. The written acceptance at Washington by the tered in the cause. 4. A letter written by the Commissioner at Wash- Argued Mar. 9, 1885. Decided Mar. 30, 1885, PPEAL from the Circuit Court of the Unit The history and facts of the case appear in bewould deny the Company any the opinion of the court. Messrs. S. F. Phillips, Solicitor-Gen., and Messrs. Wm. Edgar Simonds and Kitt Mr. Chief Justice Waite delivered the opin This is an appeal from a decree on a bill in equity filed in the Circuit Court of the United States for the District of Vermont against the Commissioner of Patents, under section 4915 of the Revised Statutes. That section is as follows: "Section 4915. Whenever a patent on application is refused, either by the Commissioner of Patents or by the Supreme Court of the District of Columbia upon appeal from the Commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent on the applicant filing in the Patent Office a copy of the adjudication, and otherwise complying with the requirements of law. In Dil McKenney. Clerk, Sup. Court, U. S. all cases where there is no opposing party, a My question of charter contract. he wide we are satisfied we have no in the case, and the motion to dis C. & 250; 116 U. 8., 54 copy of the bill shall be served on the Commis- On filing of the bill, a subpœna was issued [129] [130] [131] commanding the "Commissioner of Patents of "Washington, D. C., October 18th, 1883. United States) against an inhabitant of the United States, by any original process, in any other district than that of which he is an in habitant, or in which he may be found at the time of serving the writ." We entertain n doubt that this statute applies to suits brought under section 4915. The applicant is to have his remedy under that section by bill in equity and by the adjudication "of the court having cognizance thereof, on notice to adverse parties and other due proceedings had." A bill in equity implies a suit in equity, with process and par ties. The prayer for process is one of the component parts of the structure of a bill, and its And afterwards, and on said 23d day of Oc-purpose is to compel the defendant to appear tober, A. D. 1883, a letter from the Commissioner of Patents was filed, which said letter is in the words and figures following: Com'r of Patents. and abide the determination of the court on the subject matter of the proceeding. Story's Eq. Pl. § 44. "Department of the Interior, United States Patent Office, Washington, D. C., October 18, 1883. Sir: I am in receipt of your letter of the 16th instant, enclosing copy of a bill of complaint entitled Hill & Prentice et al. v. The Commissioner of Patents of the United States of America, in the United States Circuit Court for the District of Vermont, praying that said court direct the Commissioner of Patents to issue a patent to the assignees of Hill & Prentice for the invention disclosed and claimed in their application filed in this office March 30, 1880, The subpoena in this case was delivered to for an improvement in milk coolers; also a sub-him in the District of Columbia, and his acceptpœna to appear and answer to said bill on the ance of service was made there. That is ap5th proximo and a certified copy of said sub-parent from the face of his indorsement and pœna. I herewith return the subpoena, service accepted, and have to inform you that I shall not appear in defense in said bill. The bill in this case was filed against the Commissioner alone, and it does not appear that he was an inhabitant of the district of Vermont. The Patent Office is in the Department of the Interior (Rev. Stat., § 475), which is one of the Executive Departments of the Government at the seat of government in the District of Columbia. Rev. Stat., § 437. The Commissioner of Patents is by law located in the Patent Office. Rev. Stat., § 476. His official residence is therefore at Washington, in the District of Columbia. Very respectfully, * * E. M. Marble, Commissioner. It is contended that the Supreme Court of the letter which was written afterwards, and In |