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"That the said judgment was made absolutely by the said judge at large, while there was pending a motion to strike out the verdict and the judgment thereon, and your orator insists that said judgment is absolutely void, and rendered ultra vires, and said motion to strike out the judgment is still pending in said superior court."

It is also alleged that there was pending in the case a motion to quash the attachment. There were exhibits filed with the bill. A demurrer was interposed. Subsequently an amended and supplemental bill was filed, containing additional allegations of proceedings, and the prayer was also broadened.

case was not before said judge at large when | honorable court, whose province is to prevent said judgment was rendered, and said judge wrong and to do right and the *said plaintiff[468] had no jurisdiction or authority at law to claims that it is being deprived of its liberty render said judgment. and its property without due process of law, and that under the Declaration of Rights of the state of Maryland, art. 5, and the Constitution of the state and law of the state as laid down by the court of appeals of Maryland, it was entitled to a trial by jury in said case at law, having demanded such trial, and that the action of the judge at large in denying that right and in trying said case after an appeal from an order affecting a constitutional right, without a jury and ex parte and without notice to this plaintiff, and without an opportunity to be heard, and without any trial of the facts, and the finding of a verdict by the judge at large upon the false and fraudulent testimony of the officer of the said Sulphur Mines Company of Virginia, at said ex parte trial, all of which this plaintiff charges, is the enforcement of law and a regulation of the state abridging a privilege and immunity of this plaintiff, which is a citizen of the United States, and is repugnant to the Fourteenth Amendment of the Constitution of the United States, and every judge and all the people are bound by the Constitution of the United States, art. 2, Declaration of Rights of the state of Maryland, article 6, Constitution of the United States. Wherefore your petitioner prays leave to file an ancillary bill of complaint 1. That since the decree was passed in herein, and specially sets up and claims the this case dismissing the bill of complaint privilege, and specially sets up and claims herein, the motions of the said Chappell that any denial of the said privilege will be Chemical Fertilizer Company in the case of a denial of the equal protection of the laws The Sulphur Mines Company of Virginia v. and repugnant to the Fourteenth AmendThe Chappell Chemical & Fertilizer Com-ment of the Constitution of the United pany, which said motions are referred to in States. the original and supplemental bills filed herein, have been overruled.

To this bill a demurrer was again filed, and the ground of it stated to be that the bill did not state such a case as entitled plaintiff to any relief in equity. [467] *The demurrer was sustained, and the bills dismissed on the 2d of June, 1896.

On the 22d of August, 1896, the plaintiff presented a petition for leave to file an ancillary bill in the following words:

The said plaintiff, by Thomas C. Chappell, its attorney, reserving every manner of advantage and exception whatsoever, shows to this honorable court:

Thos. C. Chappell,
Att'y for Plaintiff.

On the same day leave to file the bill was refused. and the plaintiff, on the 25th of August, 1896, filed the following:

2. That an appeal from the order of the court in said action at law is not an adequate remedy, and that under art. 16, sec. 69, Code Pub. Gen. Laws of Maryland, the said plaintiff herein is entitled to an injunction to enThe said plaintiff, by Thomas C. Chappell, join the said plaintiff herein from reaping attorney, reserving every manner of advan any benefit from the said purported judg-order of court requiring the demurrer filed tage and exception whatsoever, excepts to the ment, and from occasioning this plaintiff any damage by any proceedings in said pretend ed judgment.

3. That while the filing of an amended or an ancillary or supplemental bill is in the discretion of the court, that discretion is to be

in this case to be argued before all of the defendants had been served with subpœna, and and supplemental bills of complaint herein, to the order of court dismissing the original and to the order of court refusing to the[469] plaintiff the right and privilege to file an anthat said order abridges a privilege and imcillary bill, and specially sets up and claims 4. That the property of this plaintiff is United States, and are repugnant to the munity of the said plaintiff, a citizen of the tied up and rendered extra commercium, and Fourteenth Amendment of the Constitution placed in such a position and its title so of the United States, under which said plainclouded by this invalid and illegal judgment tiff specially set up and claim a right, prividelivered in a court without jurisdiction, and

exercised within prescribed legal and equitable limitations, according to the decision of the court of appeals.

coram non judice, and in violation of the lege, and immunity.

Seventh Amendment and the Fourteenth Amendment of the Constitution of the United States, under which the said plaintiff specially sets up and claims a right, privilege, and immunity, that the said plaintiff is entitled to file an amended, supplemental, and ancillary bill herein, fully setting forth all the facts and insists that said illegal and invalid judgment should be canceled by this

Thos. C. Chappell,
Attorney for Plaintiff.

And on the same day the following:

Mr. Clerk: Please enter an appeal from
the decree in this case dated the 22d day of
August, 1896.

Thos. C. Chappell,
Attorney for Plaintiff.

Then follow in the record certain papers | validity; and that "certain errors were comwhich presumably were necessary to perfect mitted to the prejudice of this complainant, the appeal. the appellant, all of which will more fully appear from the assignment of errors, which will be duly filed herein."

The record contains two opinions and two judgments of the court of appeals, all dated the same day. The one which comes first in the record considers and affirms the decree of the lower court sustaining the demurrer and dismissing the bills entered June 2, 1896; the other affirms the order of the 22d of August, 1896, refusing leave to file the ancillary bill.

The following is the opinion of the court on the latter:

"The decree of the court sustaining the demurrer and dismissing the original and supplemental bills of the Chappell Chemical & Fertilizer Company against the Sulphur Mines Company of Virginia et al. was passed June 2, 1896. On the next day an appeal was entered, which we have just considered. On the 22d day of August, 1896, over two months and a half after the appeal was taken and while it was still pending, the appellant filed in the original case a petition asking leave to file 'an ancillary bill of complaint herein.' The court very promptly and properly refused to allow it to be done. From that order this appeal was taken.

"Even after a court of equity has sustained a demurrer to a bill, it can grant leave to 70]amend if it can be seen that the defects *can be remedied by amendment, and the court is of the opinion that substantial justice requires it. But when an application to amend is not made within a reasonable time and the bill is dismissed, it is out of court, and there is nothing to amend. In this case, instead of asking the court to strike out the decree dismissing the bill so it could amend, the appellant took an appeal. The case was thus beyond the right of the plaintiff to amend or to file a supplemental or 'ancillary' bill. But, in addition to that, the reasons assigned in the petition were not sufficient to authorize the interposition of a court of equity. The order of the court in refusing to allow the plaintiff to file an ‘ancillary bill' must be affirmed.

"Order affirmed, with costs to the appellee."

The assignment of errors is as follows: "Afterwards, to wit, on the first Monday of October, in this same term, before the Justices of the Supreme Court of the United States, at the Capitol, in the city of Washington, comes the Chappell Chemical & Fertilizer Company by Thomas C. Chappell, its attorney, and says that in the record and proceedings aforesaid there is manifest error in this, to wit, that the demurrer aforesaid and the matters therein contained are not sufficient in law for the Sulphur Mines Company *of Virginia to have or[471] maintain its aforesaid decree against the said the Chappell Chemical & Fertilizer Company. There is also error in this, to wit, that by the record aforesaid it appears that the decree aforesaid given was given for the said the Sulphur Mines Company of Virginia against the said the Chappell Chemical & Fertilizer Company, whereas by the law of the land the said decree ought to have been given for the said the Chappell Chemical & Fertilizer Company against the said the Sulphur Mines Company of Virginia; and the said the Chappell Chemical & Fertilizer Company prays the judgment and decree aforesaid may be reversed, annulled, and held for nothing, and that it may be restored to all things which it has lost by occasion of said judgment, etc."

The writ of error, therefore, is directed to the decree of the court of appeals affirming the decree of the lower court of the 2d of June, 1896, while the only appeal that the record contains is from the decree of the latter of the 22d of August, 1896.

But passing by this confusion, and regarding both decrees before us, we come to the motion to dismiss made by the defendants in error on the ground that no Federal question was raised in the state court.

This is true as to all the pleadings and papers, except the petition of the 22d of August, 1896, for leave to file an ancillary bill. If, however, a Federal question was raised There is more confusion when we come to by the petition and on the appeal from the the petition for writ of error. It does not order denying it, the motion to dismiss must distinguish between these judgments except nevertheless be granted, because the decision by a reference to the assignment of errors. of the court of appeals rests on grounds other The petition recites "that on or about the than those dependent on Federal questions. 5th day of June, 1897, this court [court of Simmerman v. Nebraska, 116 U. S. 54 [29: appeals] entered a decree herein in favor of 535]; Eustis v. Bolles, 150 U. S. 361 [37: the defendant, the appellee, and against this 1111]; California Powder Works v. Davis, plaintiff." It then recites that there was 151 U. S. 389 [38: 206]; Missouri P. R. R. drawn in question the validity of a statute Co. v. Fitzgerald, 160 U. S. 556 [40: 536]; or an authority exercised under the United Fowler v. Lamson, 164 U. S. 252 [41: 424]. States, and the decision was against See also Iowa Central R. R. Co. v. Iowa, 160 the validity, and also the validity U. S. 389 [40: 467]; Long Island Water Supa statute or an authority ex- ply Co. v. Brooklyn, 166 U. S. 685 [41: ercised under the state, on the ground of 1165]; and Miller v. Cornwall R. Co. 168 U. repugnancy to the Constitution of the United S. 131 [42: 409]. States, and the decision was in favor of the 172 U. S.

of

The writ of error is dismissed.

519

[872] CHAPPELL CHEMICAL & FERTILIZER COMPANY, Plff. in Err.,

v.

SULPHUR MINES COMPANY OF VIR

GINIA.

(See S. C. Reporter's ed. 472, 473.)

Federal question.

The dismissal of an appeal on the ground that it is prematurely taken does not present a Federal question.

[No. 92.]

Argued December 16, 1898. Decided January 9, 1899.

N ERROR to the Court of Appeals of the State of Maryland to review a judgment of that court dismissing an appeal from the Superior Court of Baltimore City brought by the defendant, the Chappell Chemical & Fertilizer Company. There was a motion to dismiss. Writ of error dismissed.

See same case below, 85 Md. 683. The facts are stated in the opinion. Mr. Thomas C. Chappell for plaintiff in error.

Messrs. James M. Ambler, Randolph Barton, Skipwith Wilmer, and Randolph Barton, Jr., for defendant in error.

This cause was argued with No. 91, the preceding case.

An appeal was entered from this order and perfected. The court of appeals dismissed it December 3, 1896, saying:

"The appeal in this case having been prematurely taken, the motion to dismiss it must prevail.

"The defendant, long after the time fixed by the rule of court, demanded a jury trial, and without waiting for the action of the court upon his motion, and indeed before there was any trial of the case upon its merits and before any judgment, final or otherwise, was rendered, this appeal was taken from what the order of appeal calls the order of court of the 6th of February, 1896, denying the defendant the right of a jury trial; but no such order appears to have been passed. on the day mentioned in the order of appeal low fixing the case for trial, but there was no there was an order passed by the court beaction taken in pursuance of such order until subsequent to this appeal. There is another appeal pending here from the orders which were ultimately passed.

"Appeal dismissed."

No Federal question was disposed of by this decision.

Writ of error dismissed.

CHAPPELL CHEMICAL & FERTILIZER[474} COMPANY, Plff. in Err.,

v.

[472] *Mr. Justice McKenna delivered the SULPHUR MINES COMPANY OF VIRopinion of the court:

This is a writ of error to the court of appeals of the state of Maryland to review a

GINIA.

(See S. C. Reporter's ed. 474, 475.)

judgment made by it, and which is hereafter Removal of cause-equal protection of the

set out.

The action was at law for the recovery of eight thousand dollars for money payable, 1. goods sold, and work done, and materials furnished by defendants in error (plaintiffs in the court below) to plaintiff in error (defendant in the court below), and was brought in one of the city courts [473]Baltimore, Md. To the declaration a plea

of

laws.

The loss of the jurisdiction of a state court by the pendency of a petition for removal of the cause to a Federal court is not shown by a record on writ of error which does not contain the grounds of the petition for removal or the petition Itself, and where the fact that this was filed appears only by recital and by the opinion of the court.

was filed February 12, 1895, averring that 2. The equal protection of the laws is not

[blocks in formation]

This cause was argued with Nos. 91 and 92, preceding it.

[474] *Mr. Justice McKenna delivered the opinion of the court:

This is an action at law brought by plaintiff in error against defendant in error and another, for causes growing out of the matters sued on in No. 92. Here, as in No. 92, there was a series of motions which we do not think it is necessary to notice.

[blocks in formation]

uary 9, 1899.

The case, on the appeal of plaintiff in er: Argued December 6, 7, 1898. Decided Janror, reached and was passed on by the court of appeals of the state, and to its judgment affirming that of the lower court this writ of error is directed.

The judgment must be affirmed.
Claims under the Constitution of the
[475]United States were set up in several of the
motions and denied by the court. One claim
was that the Constitution of Maryland
abridged the right of trial by jury in the
courts of Baltimore city without making a
similar provision for the counties of the
state, and that this denies to litigants of the
city the equal protection of the laws. This
is not tenable. Missouri v. Lewis, 101 U. S.

22 [25: 989]; Hayes v. Missouri, 120 U. S.
68 [30: 578].

The other claim was that the state courts
lost jurisdiction by reason of the pendency
of a petition filed under section 641 Revised
Statutes, to remove the case to the United
States circuit court. The petition for removal
is not in the record, and we only know that
it was filed by reason of the recital in other
motions and its notice in the opinion of the
court of appeals, and the grounds of it do
not appear in any part of the record.

In all other matters the judgment of the
court of appeals depends on questions of
state practice and state laws.
Judgment affirmed.

N ERROR to the Supreme Court of the

Court of Common Pleas for Richmond Councree of that court affirming a decree of the ty dismissing the complaint of the plaintiff, the Columbia Water Power Company, for an injunction against using its water power and trespassing upon its banks. Decree of the Supreme Court affirmed.

See same case below, 43 S. C. 154.

*Statement by Mr. Justice Brown: bill in equity, filed in the court of common This was a complaint in the nature of a pleas for Richmond county by the Columbia Water Power Company as plaintiff, to enjoin the Columbia Electric Street-Railway Light & Power Company from using certain water power for the propulsion of its cars, lighting its lamps, and furnishing power motors; also from entering upon plaintiff's lands and erecting thereon its buildings, works, and machinery; and also requiring the defendant to remove such as had already been erected; and for the payment of damages.

The bill set forth that a structure known as the Columbia canal begins above the city, passes through the city near the western boundary, and empties into the Congaree river just beyond the limits of the city, passing around the shoals and falls in said river,

COLUMBIA WATER POWER COMPANY, and when constructed and in use made a con

Plff. in Err.,

v.

COLUMBIA ELECTRIC STREET
WAY, LIGHT, & POWER COMPANY.

(See S. C. Reporter's ed. 475-493.)
Federal question-reservation of a right
water power by a state-Federal question.

1.

[476]

tinuous communication between the Broad and Congaree rivers; that the canal was beRAII-gun by the state as a public work in the year 1824, and for the purpose of its construction *certain lands were purchased within the lim-[477] its of the city, through which the canal was to be carried and constructed; that the canal was used for purposes of navigation for some time, and remained, with the lands described, the property of the state until February 8, A Federal question sufficiently appears, al- 1882, when the general assembly of the state though the complaint does not mention the by an act of that date authorized and directConstitution of the United States, where the ed the canal commission to transfer the whole theory of the case is the impairment by statute of a contract created by a prior canal, with the aforesaid lands, to the board statute, and the presentation and decision of of directors of the state penitentiary, with this question appear from the record and all the rights and appurtenances thereto acopinion of the state court. quired by the state; that the board was au2. The right of the state to lease such por- thorized and directed and subsequently did tion of the water power reserved as it does take possession of the canal and lands, and not require for the use of a penitentiary is proceeded with the work of enlarging and Included in the rights reserved to the state developing the canal, expending large sums under S. C. act December 24, 1887, authoriz- of money for that purpose, and widened and Ing the transfer of a canal, but providing enlarged its banks, and remained in the full charge 500 horse power of water power "for possession thereof until December 24, 1887, the use of the penitentiary and for other pur-when the general assembly passed an act poses." and declaring that "the right of the (the material portions of which are printed

that the state shall be furnished free of

in the margint) "to incorporate the board of | to purchase, sell, or lease lands adjoining the trustees of the Columbia canal, to transfer canal, useful for the purposes of the canal, [478]to said board the Columbia *canal with the to sell or lease the water power of the canal lands held therewith, with its appurtenances, subject to such rules and regulations as it and to develop the same" (19 S. C. Stat. should prescribe; and that by virtue of such 1090); that by section 1 of the act the board act the trustees became entitled to the exof directors of the penitentiary was author-clusive franchise and right to sell or lease ized to transfer and release to the board of the water power developed by the canal for [479]trustees of the canal the canal property and manufacturing and other industrial purits lands, with their appurtenances, and that poses, without let or hindrance, and withthe same should vest in the trustees for the out the right of any person or corporation to use and benefit of the city of Columbia; that interfere or interrupt in any manner the use such transfer was made and possession taken of such water power, save and except it by the board of trustees, and the property should provide a certain amount of water so remained in their possession until the date power to certain persons and parties in said and year hereinafter mentioned. act nominated and mentioned, and that no person or corporation had a right to divert, disturb, impede, or interfere with the flow of water down the said canal.

That by section 21 of the above act the board of trustees was declared a corporate body, and was authorized, among other things,

tAct of December 24, 1887.

Section 1. Be it enacted by the Senate and House of Representatives of the State of South Carolina, now met and sitting in General Assembly, and by the authority of the same, That the board of directors of the South Carolina

penitentiary are hereby authorized, empowered, and required to transfer, assign, and release to the board of trustees of the Columbia Canal, hereinafter created and provided for, the property known as the Columbia Canal, together with the lands now held therewith, acquired under the acts of the general assembly of this state with reference thereto or otherwise, all and singular the rights, members, and appurtenances thereto belonging; and upon such transfer, assignment, and release all the right, title, and interest of the state of South Carolina in and to the said Columbia Canal and the lands now held therewith, from its source at Bull's Sluice through its whole length to the point where it empties into the Congaree river, together with all the appurtenances thereunto belonging, shall vest in the said board of trustees for the use and benefit of the city of Co!umbia, for the purposes hereinafter in this act mentioned, subject, nevertheless, to the performance of the conditions and limitations herein prescribed on the part of said board of trustees and their assigns: Provided, That should the said canal not be completed to Gervais street within seven years from the passage of this act, all the rights, powers, and privileges guaranteed by this act shall cease, and the said property shall revert to the state.

Sec. 2. That the said board of trustees are

hereby authorized and directed, for the development of the said canal, to take into their possession the said property with all its appurtenances and for the purpose of navigation, for providing an adequate water power for the use of the penitentiary, and for other purposes herein named, they are hereby authorized, empowered, and directed to improve and develop

the same.

Sec.

7. That the board of trustees shall, within two years from the ratification of this act, complete the said canal so as to carry a body of water 150 feet wide at the top, 110 feet wide at the bottom, and 10 feet deep from the source of the canal down to Gervais street, and furnish the state, free of charge, on the line of the canal, 500 horse power, of water power, to Sullivan Fenner ог assigns 500 horse power of water power, under his contract with the canal commission, and to furnish the city of Columbia 500 horse power of water power at any point between the

source of the canal and Gervals street the city may select; and shall, as soon as is practicable, complete the canal down to the Congaree river a few yards above the mouth of Rocky Branch: Provided, That the right of the state to the free use of the said 500 horse power shall be absotransfer of the said canal by the said board of lute, and any mortgage, assignment, or other trustees or their assigns shall always be subject to this right.

Sec. 21. The said board of trustees shall be, and is hereby, declared a body politic and corporate. Trustees of the Columbia Canal." Its officers Its corporate name shall be "Board of shall be a chairman and a secretary and treasurer. It shall have a corporate seal; may make and enforce Its by-laws for its government; may purchase, sell, or lease lands adjoining the canal useful for the purposes of the canal; may sell or lease the water power of the canal, subject to such rules and regulations as it shall prescribe, having first provided for the state with 500 horse power of water power at the penitentiary, and 500 horse power of water power for Sullivan Fenner or his assigns, and 500 horse power of water power for the city of Columbia; may sue and be sued, plead or be impleaded under their corporate name, and exercise such other powers as are herein before granted, and shall fix such compensation for the services of the secretary and treasurer as they may deem proper. Section 23 as amended by act of December 24, 1890. (20 S. C. Stat. 967.)

Sec. 23. That the said board of trustees, as soon as they have fully developed the said canal and secured the payment of the debts contracted by them in its development, they shall turn over the canal, with all its appurtenances, to the city of Columbia. But the said board of trustees shall have full power and authority, before the said canal has been fully developed and completed and turned over to the city of Columbia, to sell, allenate, and transfer the same and all its appurtenances, the lands held therewith, and all the rights and franchises conferred by this act on said board of trustees, to any person or corporation, subject, however, to all the duties and liabilities imposed thereby, and subject to all contracts, liabilities, and obligations made and entered into by said board prior to such sale and transfer, upon the approval and consent of nine members of the city council of the city of Columbia; and before such sale, alienation, and transfer is made thirty days' notice of the offer to purchase and the terms thereof shall be given to the council of the city of Columbia.

Approved December 24, ▲ D. 1890.

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