found by the jury, after an indefinitely long- | consists of the original grant to Antonio continued peaceful enjoyment, accompanied Gutierrez, three instruments of conveyance, by the usual acts of ownership. 1 Greenleaf, one reciting the grant to Sedillo, and all asEv. § 45. serting ownership and possession of the [523] **The principle upon which this doctrine lands, and an inventory made of the estate rests is one of general jurisprudence, and is of Clemente Gutierrez by the governor of recognized in the Roman law and the codes New Mexico, then an official of Spain. The founded thereon (Best, Principles of Evi- latter was made a judicial record, and the dence, § 366), and was therefore a feature of lands mentioned in it distributed among the the Mexican law at the time of the cession." heirs. It is to this possession that the apThe application of these principles to the pellees trace, as we have seen, and the quescase at bar does not need many directing tions which can arise about it-from whom words. derived and the rightfulness or wrongfulness of it-depend upon principles already sufficiently discussed. It is enough to say that Clemente Gutierrez died in possession, and his possession was proof of ownership.

It is contended by the government that no juridical possession is shown under the grant to the southern portion of the tract; that there is no grant shown to Sedillo of the northern portion of the tract; that admitting both are shown there is no evidence that the title which Don Diego Borrego received in 1734 was conveyed to Clemente Gutierrez, | who was shown to have had the possession claiming title in 1785. To infer all these things, it is argued, is to build presumption on presumption, and carry constructive proof too far. The argument is not formidable. The instances mentioned are of the same kind as those in the cited cases, and the principle of the cases is not limited or satisfied by the presumption of only one step in the title. It requires the presumption of all that may be necessary to the repose of the title to the absolute assurance and quietude of the possession. Quoting the language of the supreme court of Tennessee, approved by this court, it assumes that all "that might lawfully have been done to perfect the legal title was in fact done and in the form prescribed by law." And, "There is hardly a species of act or document, public or private, that will not be presumed in support of possession. Even acts of Parliament may thus be presumed, as also will grants from the Crown." Best, Presumptions, § 109.

The number of steps presumed does not make the principle different, and whether it would give more strength to rebutting testimony we might be concerned to consider if there was any such testimony.

It is further contended by the government that the record shows that the appellees do not hold the interests of all of the heirs of Clemente Gutierrez, and that, therefore, the court of private land claims should have confirmed the grant, "not to the claimants appearing before it, but to the 'assigns and legal representatives of the original grantee.' And it is urged that "to make a decree in any other form is to 'conclude and affect the private rights of persons as between each other,' and this the statute [of 1891] prohibits."

We do not concur in this view of the statute. By careful distinction it precludes such view. Section 8 of the statute under which the petitions were presented provides that persons claiming lands under a Spanish or Mexican title "that was complete and per-[525] fect at the date when the United States acquired sovereignty therein shall have the right (but shall not be bound) to apply to said court in the manner in this act provided for in other cases for confirmation of such title;" but the confirmation of such title "shall be for so much land only as such perfect title shall be found to cover, always excepting any part of such land that shall have been disposed of by the United States, and always subject to and not to affect any conflicting private interests, rights, or claims held or claimed adversely to any such claim We think there can be but one conclusion or title, or adversely to the holder of any in the case. The possession of the land be- such claim or title. And no confirmation of gan in wrong or began in right. If in wrong, claims or titles in this section mentioned it must be shown. The maxims of the law shall have any effect other or further than declare the other way. Besides it is admit- as a release of all claim of title by the Unit[524]ted that the pueblo of Isleta *has had opened States; and no private right of any perand notorious possession as far back as the memory of the oldest living inhabitant can extend, and that it was claimed under the heirs of Clemente Gutierrez, and evidenced by documents which came from the custody and control of the officers who have had them during like memory. Back to Clemente Gutierrez, therefore, a continuous possession is established by admission and by testimony not contradicted. Back beyond the period of living memory and beyond that period the title needs no inquiry for its validity and re-flicting private interests; it is one against pose.

But there is some documentary evidence coming from a remoter time, and it has been discussed by counsel. We do not think it is necessary to consider it at any length. It

son, as between himself and other claimants
or persons in respect of any such lands, shall
be in any manner affected thereby."

It will be observed that the provision is
that from the confirmation there shall be ex-
cepted land that shall have been disposed of
by the United States. It is, however, made
subject to "conflicting private interests,
rights, or claims." The distinction is ob-
vious, and the reason for it equally so. The
proceeding is not a litigation between con-

the United States, and determinative only of
the title against the United States. To
avoid confusion the lands that have been dis-
posed of by the United States are required to
be excepted from confirmation. To all other

tions were thereupon propounded. And it
was further ordered that the transcript
transmitted to this court should contain the
bill, the demurrer, and the certificate.
By the 24th section of the bankruptcy act

interests and claims the confirmation is | tion the following questions," and four ques-
made subject. The forum for their deter-
mination is the ordinary courts. Ainsa v.
New Mexico & A. R. Co. 175 U. S. 76, ante,
p. 78, 20 Sup. Ct. Rep. 28, and United States
v. Valdez de Conway, 175 U. S. 60, ante, p.
72, 20 Sup. Ct. Rep. 13, decided at the pres-of July 1, 1898 (30 Stat. at L. 544, chap.

ent term.

Decree affirmed.

541), the Supreme Court of the United
States, the circuit courts of appeals, and the
supreme courts of the territories were in-
vested with "appellate jurisdiction of contro-

[526]FRED BARDES, Trustee, etc., Complainant, versies arising in bankruptcy proceedings

v.

from the courts of bankruptcy from which
they have appellate jurisdiction in other
cases." And it was also provided, § 25, d,
that "controversies may be certified to the
Supreme Court of the United States from

other courts of the United States, and the
former court may exercise jurisdiction there-
of and issue writs of certiorari pursuant to
the provisions of the United States laws now
in force or such as may be hereafter enacted.'

By the 5th section of the judiciary act of March 3, 1891 (26 Stat. at L. 826, chap. 517), it was provided that appeals or writs of error might be taken from the district courts or from the circuit courts direct tc this court, among other cases, in any case in which the jurisdiction of the court was

Submitted December 20, 1899. Decided De-in issue, but that in such cases the question

cember 22, 1899.

0%
N CERTIFICATE from the District
Court of the United States for the
Northern District of Iowa presenting the
question of the jurisdiction of that court in
a bankruptcy case which had not proceeded
to final judgment. Dismissed.

The facts are stated in the opinion.

Mr. Clarence A. Brandenburg submitted the cause for complainant. Messrs Will iam P. Lohr, Henry C. Gardiner, Frederick W. Lohr, Deloss C. Shull, and William H. Farnsworth were with him on the brief. Mr. William Milchrist submitted the cause for defendant. Mr. John Hutchinson

was with him on the brief.

[526] Mr. Chief Justice Fuller delivered the opinion of the court:

of jurisdiction alone should be certified from
the court below for decision; by the sixth
section, that in cases made final in the cir-
cuit courts of appeals, those courts might
at any time certify to this court any ques-
tions or propositions of law concerning which
they desired instruction for the proper ue-
cision of the cases, and this court might an-
swer the questions, or might require the
whole record and cause to be sent up for con-
sideration; and also that in respect of cases
so made final, it should be competent for
this court to require by certiorari or other-
wise any such case to be certified to this
court for review and determination with the[528)
same power and authority as if it had been
brought here by appeal or writ of error.

It was early held under that act (McLish v. Roff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. This is a certificate from the district court Ct. Rep. 118), that appeals or writs of erof the United States for the northern district ror in cases in which the jurisdiction of the of Iowa. It appears therefrom that a bill of court was in issue could only be taken dicomplaint was filed in that court sitting in rectly to this court after final judgment; bankruptcy by Bardes, trustee of the estate and subsequently, in United States v. Rider, of Walker, who had been therein adjudged 163 U. S. 132, 41 L. ed. 101, 16 Sup. Ct. Rep. a bankrupt on his own petition, seeking to 983, that review by appeal, writ of error, or set aside the transfer of a stock of goods by otherwise, must be as prescribed by that act, the bankrupt, and to compel defendants to and that the use of certificate was limited account for the goods or their proceeds, be- by it to the certificate by the courts below, cause the transfer was in fraud of the pro-after final judgment, of questions made as to visions of the bankruptcy act and of the their own jurisdiction, and to the certificate creditors of the bank; that defendants inter- by the circuit courts of appeals of questions [527]posed a demurrer to the bill on the ground of law in relation to which the advice of this that the court could not take jurisdiction of court was sought as therein provided. We the case, and that thereupon it was certified there held that the act of March 3, 1891, that the court "aesiring to obtain the opin-covered the whole subject-matter, and furion and instruction of the Supreme Court of the United States for its guidance in the premises, hereby certifies to the Supreme Court for its consideration and determinaNOTE-A8 to cases certified,-see note to Webster v. Cooper, 13 L. ed. U. S. 325.

nished the exclusive rule in respect of ap-
pellate jurisdiction on appeal, writ of er-
ror, or certificate.

The bankruptcy act has made no change
in this regard, and as this case has not gone
to judgment, the certificate must be dismissed.

In the petition filed by them it was alleged

That the plaintiffs were residents, property owners, and taxpayers of Richmond county, the defendant board being a corporation created under an act of the general assembly of Georgia of August 23d, 1872, regulating public instruction in that county empowering the board to annually levy such tax as it deemed necessary for public school purposes;

That on the 10th of July, 1897, the board levied for that year for the support of primary, intermediate, grammar, and high schools in the county, a tax of $45,000, which was then due and being collected;

That the petitioners interposed no objections to so much of the tax as was for primary, intermediate, and grammar schools, but the tax for the support of the system of high schools was illegal and void for the reason that that system was for the use and benefit of the white population exclusively; That the board was not authorized by law to levy any tax for the support of a system of high schools in which the colored school population of the county were not given the same educational facilities as were furnished the white school population;

That at least $4,500 of the tax of $45,000 [530] was being collected and when collected would be used for the support of such system of high schools;

10th, 1897, it withdrew from and denied to
the colored school population any participa
tion in the educational facilities of a high-
school system in the county, and had voted
to continue to deny to that population any
admission to or participation in such educa-
tional facilities; and that at the time of
such withdrawal and denial the petitioners
respectively had children attending the col-
ored high school then existing, but who were
now debarred from participation in the bene-[531]
fits of a public high-school education though
petitioners were being taxed therefor. They
averred that the action of the board of educa-
tion was a denial of the equal protection of
the laws secured by the Constitution of the
United States, and that it was inequitable,
illegal, and unconstitutional for the board to
levy upon or for the tax collector to collect
from them any tax for the educational pur-
poses of the county from the benefits of
which the petitioners in the persons of their
children of school age were excluded and
debarred.

The petitioners prayed that the tax collector, Bohler, be enjoined from collecting so much of the tax levy of July 10th, 1897, as had been levied for the support of said system of high schools; that the board be enjoined from using any funds or property then held by it or thereafter to come into its hands for educational purposes in the county for the support, maintenance, or operation of that system; and that they have such other and further relief as was equitable and just.

That the board had on hand the sum of $20,000 or other large sum, the proceeds of prior tax levies, in trust to disburse solely The board of education demurred to the for legal educational purposes in the county, petition and also filed an answer. It denied and would receive from the tax levy of 1897 that it had established any system of high and from other sources large sums in like schools in the county, and averred that it trust, and that it was the owner and had the was neither its duty nor had it authority to custody and control of school fixtures, furni-establish such a system, although it had ture, educational equipments and appliances authority in its discretion to establish high generally, holding the same in like trust; schools at such points in the county as the and, interest or convenience of the people reThat although the board was not author-quired; that in pursuance of such authority ized by law to use any part of such funds or property for the support and maintenance of a system of high schools in which the colored school population were not given the same educational facilities as were furnished for the white school population, it was using such funds and property in the support and maintenance of its existing high-school system, the educational advantages of which were restricted wholly to the benefit of the white school population of Richmond county, to the entire exclusion of the colored school population, and that by such use of those funds and property a deficiency for educational purposes would inevitably result, to make which good additional taxation would be required.

The petitioners also alleged that they were persons of color and parents of children of school age lawfully entitled to the full benefit of any system of high schools organized or maintained by the board; that up to the time of the said tax levy and for many years continuously prior thereto, the board maintained a system of high schools in Richmond county in which the colored school population had the same educational advantages as the white school population, but on July

it had established the Neely High School in
1876, but in 1878 its name was changed to
that of the Tubman High School, when Mrs.
Emily H. Tubman presented to the board a
large lot and building for the purpose of
affording a higher education to the young
women of the county, the Richmond Acade-
my affording this benefit and advantage to
the male sex; that the demand was urgent
for the continuance of the Tubman school by
the board, and it was so accordingly deter-
mined, each pupil paying $15 for tuition per
annum and nonresidents of the county $40,
which was the charge made by the Richmond
Academy for Boys; and that the property,
the value of which with the fixtures, furni-
ture, and appliances was worth not less than
$30,000, was donated by Mrs. Tubman upon[532]
the express condition that in the event the
board failed to use the building for a high
school the same was to inure instantly to the
benefit of the Richmond Academy and the
Augusta Free School;

That in June, 1876, the board deemed it
wise to give its assistance to the Hephzibah
High School, conducted and controlled by the
Hephzibah Baptist Association in the
village of Hephzibah, in the southeastern

part of the county, charging and receiving
for high school scholars the sum of $15 per

annuin;

That, in 1880, there being no high school in the county for the colored race, the funds of the board justifying it, and other schools of lower grade having been established by the local trustees in Augusta sufficient to accommodate the colored children, the board deemed it wise and proper to establish the Ware High School, charging for each pupil taught therein $10 per annum; and

mary schools for the colored population it would be unwise and unconscionable to keep up a high school for 60 pupils and turn away 300 little negroes who are asking to be taught their alphabet and to read and write. No part of the funds of this board accrued or accruing and no property appropriated to the education of the negro race has been taken from them. This board has only applied the same means and moneys from one grade of their education to another grade; and in this connection defendant says that the enrolment in the colored school is this year 238 more than the last. the Ware High School building accommodating 188 pupils."

That in June, 1897, a special committee appointed by the board investigated the status of the high schools in the county and ascertained the condition of each, and the committee recommended that, for "purely economic reasons in the education of the negro race," the Ware High School be discontinued and the city conference board requested to open four primary schools in the same building at a cost of about $200 each for the accommodation of those negro children who were annually denied admit-lished by the trustees of each school district tance to the schools.

The answer of the board, referring to the act of 1872, averred that "§ 9 of said act commands the local trustees to provide the same facilities to each race as regards schoolhouses and fixtures, attainments and abilities of teachers *and length of term, but that [534] this section refers only to the schools estabunder 6 of said act, and does not apply to The answer of the board further stated: schools of higher grade; that § 10 of said "Touching the Ware High School, its friends act, which empowers this respondent to and the colored patrons thereof were called establish schools of higher grade than those before the committee, and were heard by the established by the local trustees, ordains committee with every respect and considera- their establishment to such as the interest tion. They were told the reasons that con- and convenience of the people may in the trolled the committee in its intention to judgment of this board require. It admits recommend its discontinuance for the pres- that on the 10th day of July last it susent. These were: Because 400 or more of pended the Ware High School for the reason negro children were being turned away from that in its judgment the interest and conthe primary grades unable to be provided venience of the people did not require it, with seats or teachers; because the same and that it caused to be established in its means and the same building which were stead three primary schools for colored used to teach 60 high-school pupils would children, and for reasons heretofore in its accommodate 200 pupils in the rudiments of answer set forth. Whether or not the petieducation; because the board at this time tioners at the time of said suspension had [533]was not financially *able to erect buildings children attending the Ware High School and employ additional teachers for the large this defendant is not advised, but denies that number of colored children who were in need they are debarred from a high-school educaof primary education, and because there tion in this community, since for the same were in the city of Augusta at this time charges as were made by this board for three public high schools, the Haines In-pupilage in the Ware High School they can dustrial School, the Walker Baptist Institute, and the Payne Institute each of which were public to the colored people, and were charg. ing fees no larger than the board charged for pupilage in the Ware High School." After stating that the action of the special committee was approved by the board, the answer continued: "At the same time when the vote was taken on the report of the Ware The plaintiffs amended their petition, High School it was unanimously resolved alleging: "1st. That 'the Payne Institute,' that the board of education reinstate the 'the Walker Baptist Institute,' and 'the said school whenever in their judgment the Haines Normal & Industrial Institute' board could afford it. Subsequently to the mentioned in said answer, are purely private board's temporary suspension of the Ware and pay educational institutions under High School a number of colored people sectarian control, and have been in petitioned the board for rescission of this existence for years past, and have no conaction, among whom were the complainants nection, and never have had any connection, herein. A full board was called and con- whatsoever with the public-school system vened on the day of August, and the peti- conducted by said board. 2d. That said tioners were heard and their request fully board has no legal right to charge for extendconsidered. The board, after a session and ing a public high-school education to the deliberation of over two hours, refused to children of school age of actual residents of rescind for the reasons heretofore set out, said county. 3d. That if a deficiency of and says, in their view, until the local trus-means exists for extending a public primarytees-i. e., the city conference board-school education to the colored school should have furnished a sufficiency of pri- population of the city of Augusta in said

find this education in three other colored high schools open to the public in the city of Augusta. Defendants deny the allegations specially pleading that the acts of 1872 and 1877 deny to the colored race equal protection of the law, or that the course and conduct of this board thereunder is obnoxious to this constitutional inhibition."