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[178]

[131]

commanding the "Commissioner of Patents of | United States) against an inhabitant of the
the United States of America" to appear before
the court in Vermont and answer. "On the 18th
of October, 1883, the Commissioner made the
following indorsement en the writ:

"Washington, D. C., October 18th, 1883.
I hereby accept service of the within sub-
pœna, to have the same effect as if duly served
on me by a proper officer, and I do hereby ac-
knowledge the receipt of a copy thereof.

E. M. Marble,

Com'r of Patents.
(Office of Com'r of Patents. Received Oct.
18, 1883.)"

And afterwards, and on said 23d day of Oc-
tober, A. D. 1883, a letter from the Commis-
sioner of Patents was filed, which said letter is
in the words and figures following:

"Department of the Interior,

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 no
doubt that this statute applies to suits brought [132]
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 com-
ponent parts of the structure of a bill, and its
purpose is to compel the defendant to appear
and abide the determination of the court on the
subject matter of the proceeding. Story's Eq.
Pl. § 44.

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.

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 poena. I herewith return the subpoena, service accepted, and have to inform you that I shall not appear in defense in said bill.

Very respectfully,

* * *

E. M. Marble, Commissioner.
Mr. W. E. Simonds, Hartford, Conn."
No other service of process was made on the
Commissioner, and he made no other appear-
ance in the cause than such as may be implied
from his acceptance of service and his letter as
above. In due course of proceeding a decree
was entered adjudging that “Samuel Hill and
Benjamin B. Prentice, as inventors, and the
Vermont Machine Company, as assignee of said
inventors, are entitled to have issued to them
letters patent
as prayed for in the
petition and bill of complaint." No one was
made defendant to the bill except the Commis-
sioner of Patents, and Hill, Prentice and the
Machine Company, the complainants, were all
citizens of Vermont. Benjamin Butterworth,
the Commissioner of Patents, took this appeal,
and the only question presented under it for
our consideration is whether the Circuit Court
of the District of Vermont had jurisdiction so
as to bind the Commissioner by the decree which
was rendered.

It is contended that the Supreme Court of
the District of Columbia has exclusive jurisdic-
tion of suits against the Commissioner brought
under this section of the Revised Statutes. In
the view we take of this case, however, that
question need not be decided. By section 739
of the Revised Statutes, as well as by the Act
of March 3, 1875, chap. 137, § 1, 18 Stat. at L.,
470, it is provided in substance that, with some
exceptions which do not apply to this case, "No
civil suit shall be brought before either of said
courts (the Circuit or District Courts of the

the letter which was written afterwards, and filed in the cause, undoubtedly as proof of a delivery of a copy of the bill which the law required should be served on him. Both the indorsement and the letter purport to have been written at Washington, and the letter in the Patent Office. Unless, therefore, the acceptance of service as indorsed on the writ is to be treated as a voluntary appearance by the Commissioner in the court in Vermont, without objection to the jurisdiction, the case stands as it would if the process had been actually served on him in the District of Columbia by some competent officer. The Circuit Court was of opinion that by his acceptance of service the Commissioner waived all objection to the jurisdiction and consented to be sued away from the seat of government and from his residence. In this we think there was error. The fair meaning of the indorsement on the writ is that the Commissioner admits the service with the same effect it would have if made by an officer in the District of Columbia. No appearance is thereby entered in the cause. Service of the subpoena in the District is acknowledged, but nothing more. In the letter which followed the indorsement of service, both counsel and the court were informed that the Commissioner declined to appear. The parties proceeded, therefore, at their own risk and without the consent of the defendant to the jurisdiction of the court. Such being the case, we are of opinion that the court was without jurisdiction and had no authority to enter the decree which has been appealed from. The Act of Congress exempts a defendant from suit in any district of which he is not an inhabitant, or in which he is not found at the time of the service of the writ. It is an exemption which he may waive, but unless waived

[133]

4. The rights of a corporation are determined by
the law in force when it came into being.
[No. 203.]

Argued Mar. 18, 19, 1885. Decided Apr. 6, 1885.

IN ERROR to the Supreme Court of Appeals

of the State of West Virginia.

Without considering any of the other ques-
The bill in this case was filed in the Circuit
tions which have been presented in the argu- Court of Ohio County, West Virginia, by the
ment, or which might be suggested under the
statute, we reverse the decree of the Circuit Court plaintiff in error, for an injunction to restrain
and remand the cause, with instructions to dis- the collection of certain taxes alleged to be ille-
miss the bill without prejudice for want of juris-gal. The court found for the complainant and
entered a decree in accordance with the prayer
of the bill.

[177]

[178]

[131]

commanding the "Commissioner of Patents of | United States) against an inhabitant of the
the United States of America" to appear before
the court in Vermont and answer. "On the 18th
of October, 1883, the Commissioner made the
following indorsement on the writ:

"Washington, D. C., October 18th, 1883.
I hereby accept service of the within sub-
pœna, to have the same effect as if duly served
on me by a proper officer, and I do hereby ac-
knowledge the receipt of a copy thereof.

United States, by any original process, in any other district than that of which he is an inhabitant, or in which he may be found at the time of serving the writ." We entertain no doubt that this statute applies to suits brought [132] 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 parties. 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:

E. M. Marble,

Com'r of Patents.
(Office of Com'r of Patents. Received Oct.
18, 1883.)"

and abide the determination of the court on the subject matter of the proceeding. Story's Eq. Pl. § 44.

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.

"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 Amer. ica, 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 ap 5th proximo and a certified copy of said sub-parent from the face of his indorsement and poena. I herewith return the subpoena, service accepted, and have to inform you that I shall not appear in defense in said bill.

Very respectfully,

* * *

E. M. Marble, Commissioner.
Mr. W. E. Simonds, Hartford, Conn."
No other service of process was made on the
Commissioner, and he made no other appear-
ance in the cause than such as may be implied
from his acceptance of service and his letter as
above. In due course of proceeding a decree
was entered adjudging that "Samuel Hill and
Benjamin B. Prentice, as inventors, and the
Vermont Machine Company, as assignee of said
inventors, are entitled to have issued to them
letters patent
as prayed for in the
petition and bill of complaint." No one was
made defendant to the bill except the Commis-
sioner of Patents, and Hill, Prentice and the
Machine Company, the complainants, were all
citizens of Vermont. Benjamin Butterworth,
the Commissioner of Patents, took this appeal,
and the only question presented under it for
our consideration is whether the Circuit Court
of the District of Vermont had jurisdiction so
as to bind the Commissioner by the decree which
was rendered.

It is contended that the Supreme Court of
the District of Columbia has exclusive jurisdic-
tion of suits against the Commissioner brought
under this section of the Revised Statutes. In
the view we take of this case, however, that
question need not be decided. By section 739
of the Revised Statutes, as well as by the Act
of March 3, 1875, chap. 137, § 1, 18 Stat. at L.,
470, it is provided in substance that, with some
exceptions which do not apply to this case, "No
civil suit shall be brought before either of said
courts (the Circuit or District Courts of the

the letter which was written afterwards, and filed in the cause, undoubtedly as proof of a delivery of a copy of the bill which the law required should be served on him. Both the indorsement and the letter purport to have been written at Washington, and the letter in the Patent Office. Unless, therefore, the acceptance of service as indorsed on the writ is to be treated as a voluntary appearance by the Commissioner in the court in Vermont, without objection to the jurisdiction, the case stands as it would if the process had been actually served on him in the District of Columbia by some competent officer. The Circuit Court was of opinion that by his acceptance of service the Commissioner waived all objection to the jurisdiction and consented to be sued away from the seat of government and from his residence. In this we think there was error. The fair meaning of the indorsement on the writ is that the Commissioner admits the service with the same effect it would have if made by an officer in the District of Columbia. No appearance is thereby entered in the cause. Service of the subpoena in the District is acknowledged, but nothing more. In the letter which followed the indorsement of service, both counsel and the court were informed that the Commissioner declined to appear. The parties proceeded, therefore, at their own risk and without the consent of the defendant to the jurisdiction of the court. Such being the case, we are of opinion that the court was without jurisdiction and had no authority to enter the decree which has been appealed from. The Act of Congress exempts a defendant from suit in any district of which he is not an inhabitant, or in which he is not found at the time of the service of the writ. It is an exemption which he may waive, but unless waived

[133

he need not answer and will not be bound by anything which may be done against him in his absence. What is here said of course does

not apply to cases where the suit is brought and service is made under sections 736, 737, and 738 of the Revised Statutes.

4. The rights of a corporation are determined by
the law in force when it came into being.
[No. 203.]

Argued Mar. 18, 19, 1885. Decided Apr. 6, 1885.

Ν

IN ERROR to the Supreme Court of Appeals
of the State of West Virginia.

Without considering any of the other ques-
The bill in this case was filed in the Circuit
tions which have been presented in the argu- Court of Ohio County, West Virginia, by the
ment, or which might be suggested under the
statute, we reverse the decree of the Circuit Court plaintiff in error, for an injunction to restrain
and remand the cause, with instructions to dis- the collection of certain taxes alleged to be ille-
miss the bill without prejudice for want of juris-gal. The court found for the complainant and
entered a decree in accordance with the prayer
of the bill.

diction.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

JOSEPH S. MILLER, Auditor of the STATE
OF WEST VIRGINIA.

(See S. V., Reporter's ed., 176-189.) Constitutional law-impairing obligation of contracts-corporations-exemption of property of, from taxation, a personal privilege which does not pass to purchaser-rights of corporations -by what law determined.

1. The exemption from taxation of the property of the Covington and Ohio Railroad Company, granted by the Act of the Legislature of West Virginia, of March 1, 1868, incorporating said company, was a privilege personal to the corporation, which did not pass to the purchaser of the property under føreclosure proceedings.

This decree having been reversed, on appeal, by the court below, the complainant sued out this writ of error.

The facts are stated in the opinion.

Messrs. Geo. F. Edmunds, Willliam J.
Robertson, William H. Hogeman and James
H. Ferguson, for plaintiff in error.

Mr. Cornelius C. Watts, Atty-Gen. of
West Virginia, for defendant in error.

Mr. Justice Matthews delivered the opinion of the court:

This writ of error brings into review a final decree of the Supreme Court of Appeals of the State of West Virginia dismissing the bill of complaint filed by the plaintiff in error, the error assigned being that that court gave effect to a statute of the State alleged to be void, on the ground that it impaired the obligation of a contract between the plaintiff in error and the State of West Virginia.

The statute thus drawn in question is an Act
of the Legislature of West Virginia, passed
March 7, 1879, subjecting the property of the
plaintiff in error in that State to taxation,

2. The Act of the Legislature of West Virginia, The contract alleged to be thus broken by
of February 18, 1871, amended February 20, 1877, re- the State is one of exemption from taxation,
lating to sales under trust deeds and mortgages
and to judicial sales of the property of railroad or contained in the 7th section of an Act of the
other internal improvement companies, provides Legislature of West Virginia, passed March 1,
that, upon any such sale and conveyance, the old 1866, entitled "An Act to Incorporate the Cov
company shall be dissolved, and that the purchaser
shall be a corporation and shall succeed to all ington and Ohio Railroad Company," and is in
such franchises, rights and privileges * *
as the following words;
would have been had *** by the first com-
pany, but for such sale." Under this Act the new

does not take any exemption or immunity from taxation which belonged to the old company; the new company takes all grants of corporate powers, rights, privileges, franchises and immunities subject to the laws existing at the time of its creation. 3. Immunity from taxation is not a franchise. Morgan v. Louisiana, bk. 24, affirmed.

NOTE.-Corporations-franchises-power to mortgage-exemption from taxation. See M. & L. R. R. Co. v. R. Berry., 112 U. S., 609, bk. 28, 837, note. No presumption can be made in favor of the existence of power to delegate or mortgage those franchises which do not pertain to the use of particular property. A grant of authority to a railroad company to mortgage its property and franchises would refer only to such franchises as pertain to the use of the railroad; it would not enable the company to mortgage the franchise of being exempt from taxation in connection with its tangible property. Morawetz on Corporations, § 924, citing among others the above case of Chesapeake Compare also Mayor v. Norwich, etc., R. R. Co., 102 Mass., 103; Meyer v. Johnson, 53 Ala., 237; Coe v. Columbus, etc., R. R. Co., 10 Ohio St., 372; Eldridge V. Smith, 34 Vt., 484; Bank of Middlebury v. Edgerton, 30 Vt., 182; Cook v. Detroit, etc., R. R. Co., 43 Mich., 349; Pierce v. Emery, 32 N. H., 484. cited by Morawetz as to power of corporations to transfer

& Ohio R. Co. v. Miller.

franchises.

Exemption from taxation, not implied. Tucker v. Ferguson, 89 U. S. (22 Wall.), bk. 22, 805, note.

7. The rate of charge by said company for passengers and freight transported on the main line and branches of said railroad shall never exceed the highest allowed by law to other railroads in the State, and no discrimination shall be made in such charges against any connecting railroad or canal company chartered by the State, and no taxation upon the property of the said company shall be imposed by the State until the profits of said company shall amount to ten per cent on the capital of the company.'

The plaintiff in error, complainant below, alleging that it was entitled to the benefit of this exemption by way of contract with the State, and that no profits had been made by it upon its capital, prayed for an injunction to restrain the appellee, the auditor of West Vir ginia, from proceeding under the Act of March 7, 1879, to assess and collect any tax upon its property within the State.

The plaintiff in error became a party to the contract contained in the Act of March 1, 1866, to incorporate the Covington and Ohio Railroad Company, in the following manner: This Act was similar in its terms to one passed about State of Virginia. Both had in view the comthe same date by the General Assembly of the

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[178]