States to the elder chief Moose Dung by the treaty itself, and having descended, upon his death, by the laws, customs, and usages of the tribe, to his eldest son and successor as chief, Moose Dung the younger, passed by the lease executed by the latter in 1891 to the plaintiffs for the term of that lease; and their rights under that lease could not be devested by any subsequent action of the lessor, or by Congress, or of the executive departments. The construction of treaties is the peculiar province of the judiciary; and, except in cases purely political, Congress has no constitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself. Wilson v. Wall, 6 Wall. 83, 89, 18 L. ed. 727, 729; Reichart v. Felps, 6 Wall. 160, 18 L. ed. 849; Smith v. Stevens, 10 Wall. 321, 327, 19 L. ed. 933, 935; Holden v. Joy, 17 Wall. 211, 247, 21 L. ed. 523, 535. termination without deciding such question, the fact that it was not specially set up and claimed is not conclusive against a review of the question here. Columbia Water Power Co. v. Columbia Electric Street R. Light & P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247. Raising the question of jurisdiction over a citizen of another state, or over property located in another state, for the purpose of taxation, necessarily involves a Federal question. Dobbins v. Erie County Comrs. 16 Pet. 435, 10 L. ed. 1022; Murray v. Charleston, 96 U. S. 432, 24 L. ed. 760. Mr. Emmet R. Olcott argued the cause and filed a brief for defendant in error: The Federal question sought to be raised here, not having been presented in the state court, the case should be dismissed for want of jurisdiction. Murdock v. Memphis, 20 Wall. 590, 22 L The congressional resolution of 1894, and the subsequent proceedings in the Departed. 429; Moore v. Mississippi, 21 Wall. 638, ment of the Interior, must therefore be held to be of no effect upon the rights previously acquired by the plaintiffs by the lease to them from the younger chief; and the decree is affirmed. JOHN H. SCUDDER, Administrator of the Estate of John F. Houdayer, Deceased, Plff. in Err., v. 22 L. ed. 653; Winona & St. P. Land Co. v. Minnesota, 150 U. S. 540, 40 L. ed. 252, 16 Sup. Ct. Rep. 88; Rutland R. Co. v. Central Vermont R. Co. 159 U. S. 630, 40 L. ed. 284, 16 Sup. Ct. Rep. 113; Union Nat. Bank v. Louisville, N. A. & C. R. Co. 163 U. S. 325, 41 L. ed. 177, 16 Sup. Ct. Rep. 1039; Levy v. San Francisco Super. Ct. 167 U. S. 175, 42 L. ed. 126, 17 Sup. Ct. Rep. 769; Miller v. Cornwall R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Muse v. Arlington Ho BIRD S. COLER, Comptroller of the City tel Co. 168 U. S. 430, 42 L. ed. 531, 18 Sup. and County of New York. (See S. C. Reporter's ed. 32-36.) Writ of error to state court-failure to raise Federal question. Failure to raise a Federal question until after a case has been finally decided in the highest court of a state will preclude a writ of error to review that decision from the Supreme Court of the United States. [No. 55.] Argued October 18, 1899. Decided October 30, 1899. N ERROR to the Surrogate's Court of the to review a decision holding that certain bank deposits belonging to the estate of a deceased nonresident of the state are subject to the New York act of 1892, chap. 399, taxing transfers of property by will or by the intestate laws. Dismissed for want of ju risdiction. See same case below, 150 N. Y. 37, 34 L. R. A. 235, 44 N. E. 718. The facts are stated in the opinion. Mr. J. Culbert Palmer argued the cause and filed a brief for plaintiff in error: A Federal question being necessarily involved, and the case being incapable of de NOTE.—A8 to jurisdiction of Federal over state courts; necessity of Federal question,-see notes to Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998; Hamblin v. Western Land Co. 37 L. ed. U. 3. 267. Ct. Rep. 109; Kipley v. Illinois, 170 U. Š. 186, 42 L. ed. 1001, 18 Sup. Ct. Rep. 550.. *Mr. Justice Gray delivered the opinion [33] of the court: This was a proceeding commenced September 27, 1895, in the surrogate's court, by the comptroller of the city and county of New York, for the taxation of property of John F. Houdayer, deceased, under the statute of New York of 1892, chap. 399, entitled "An Act in Relation to Taxable Transfers of Property," the material provisions of which were as follows: "Sec. 1. A tax shall be and is hereby imposed upon the transfer of any property, or personal, of the value $500 or of any interest therein or income there from, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property in the following cases: intestate laws of this state from any person "1. When the transfer is by will or by the dying seised or possessed of the property while a resident of the state. "2. When the transfer is by will or intestate law, of property within the state, and the decedent was a nonresident of the state at the time of his death.” "Sec. 22. The words 'estate' and 'property.' as used in this act, shall be taken to mean the property or interest therein of the tes tator, intestate, grantor, bargainor, or vendor, passing or transferred to those not herein specifically exempted from the provisions of this act, and not as the property or interest therein passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees, or vendees, and shall include all property or interest therein, whether situated within or without this state, over which this state has any jurisdiction for the purposes of taxation. The word 'transfer,' as used in this act, shall be taken to include the passing of property or any interest therein in possession or enjoyment, [34]*present or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale, or gift in the manner herein prescribed." 1 N. Y. Laws 1892, pp. 814, 815, 822. The case, as stated by the court of appeals, was this: "On May 21, 1895, John F. Houdayer died intestate at Trenton, New Jersey, where he had resided for a number of years. In 1876 he opened an account with the Farmers' Loan & Trust Company of the city of New York as trustee under the will of Edward Husson, deceased, in which he made de posits from time to time of moneys belonging to the trust estate, as well as moneys belonging to himself. This continued as an open running account until his death, when the balance on hand was the sum of $73,715, of which $2,000 belonged to him as trustee, and the remainder to himself as individual. The appraiser deducted $3,500 for the payment of debts and expenses, and included $68,215 in the appraisal, which was affirmed by the surrogate, but reversed by the supreme court." 150 N. Y. 37, 34 L. R. A. 235, 44 N. E. 718, 3 App. Div. 474, 38 N. Y. Supp. 323. On October 6, 1896, the court of appeals reversed the order of the supreme court, and affirmed the order of the surrogate. On April 4, 1898, the administrator of Houdayer sued out a writ of error from this court, as against the comptroller, and assigned the following errors: "First. That the property in question being situated in the state of New Jersey, of which state also the decedent was a resident at the time of his decease, the laws of the state of New York have no application thereto, nor have the courts of New York jurisdiction thereof. "Second. That by the law, as interpreted by the decision and judgment herein, the leg islature of the state of New York attempts to exercise jurisdiction beyond the state, and to affect contracts and rights of a citizen of another state, which are protected by the Constitution and laws of the United States and the judicial power granted to its courts, and violates and interferes with the sovereignty of the state of New Jersey. "Third. That the act of the legislature of [35] the state of New York, herein referred to, as applied to the facts and circumstances of this case, or the act done under the authority of the state of New York here complained of, is unconstitutional and void as being repugnant to section 10 of article 1 of the Constitution of the United States, in that it impairs the obligation of the contract between a nonresident depositor and the Farmers' Loan & Trust Company of New York. "Fourth. That the said act of the legislature, as interpreted by the decision herein, is repugnant to the 5th Amendment of the Constitution of the United States, which provides that private property shall not be taken for a public use without just compensation. "Fifth. That the said act of the legislature, as interpreted by the decision herein, is repugnant to section 1 of the 14th Amendment of the Constitution of the United States, by which states are forbidden to deprive citizens of life, liberty, or property without due process of law." But the difficulty which lies at the threshold of the consideration of this writ of error is that none of the points taken in the assignment of errors appear by the record to have been made in any of the courts of the state. The only statements of the grounds of the administrator's objections to the proceedings below are these two: 1st. His affidavit filed before the appraiser appointed by the surrogate, averring "that he objects to such proceedings, and opposes a levy of any such tax upon such amount so on deposit, and claims that said deposit is exempt under the laws and not subject to taxation." 2d. His appeal to the surrogate from the formal order of assessment, taken "on the ground that the deposit in the Farmers' Loan & Trust Company of $71,715, standing at the time of the decedent's death in his name as trustee, was a chose in action belonging to a nonresident decedent, and not property within this state subject to taxation under the provisions of the act in relation to taxable transfers of property; that the situs of the claim of the decedent against such deposit was at the domicil of the decedent, and not at the domicil of the said depository, and such property being the property of a nonresident decedent, and situated out of this state, the [36] same does not fall within the purview of said act." laws of New York, and not to the ConstituBoth these statements clearly refer to the tion of the United States. And the opinion court of appeals, turns upon the question of the supreme court, as well as that of the whether the sum due from the Farmers' Loan & Trust Company of the city of New York to the intestate at the time of his death was "property within the state," within the meaning of the statute of 1892. No mention of the Constitution of the United States, or of any provision thereof, by the plaintiff in error, or by the court, is to be found at any stage of the case while it was pending in the courts of the state of New York; and it is impossible, upon this record, to avoid the conclusion that it never occurred to the plaintiff in error to raise a Federal question until after the case had been finally decided against him in the highest court of the state. In order to give this court jurisdiction of a writ of error to review a judgment which 36-38 Mr. Chief Justice Fuller delivered the opinion of the court: the highest court of a state has rendered in | 358, 12 Sup. Ct. Rep. 615; Hunt v. United Writ of error dismissed for want of jurisdiction. [37]*ANGLO-CALIFORNIAN BANK, Limited, Appt., v. UNITED STATES. (See S. C. Reporter's ed. 37-40.) (26 Stat. at L. 131, chap. 407), commonly Jurisdiction on appeal to review classifica-ted on printed briefs. tion of imported articles. A suit to review a decision of the board of gen- ciary act of March 3, 1891, the decision of [No. 31.] 48 The proceedings were carried on below in the name of the Secretary of the Treasury, but in this court, by agreement, the United States were properly substituted as a party. United States v. Jahn, 155 U. S. 109, 39 L. ed. 87, 15 Sup. Ct. Rep. 39; United States V. Hopewell, 5 U. S. App. 137, 51 Fed. Rep. 798, 2 C. C. A. 510. The judiciary act of March 3, 1891 (26 Stat. at L. 826, chap. 517), provides for the review of the final decisions of the circuit Submitted October 11, 1899. Decided Octo-courts by this court and by the circuit courts A ber 30, 1899. of appeals. Section 5 specifies the classes of cases which may be brought directly to this court, and section 6 confers appellate jurisdiction in all other cases on the circuit courts of appeals, whose judgments or deAt the same crees in certain enumerated classes of cases are made final by the statute. time the section provides that the circuit See same case below, 48 U. S. App. 27, 76 courts of appeals may certify to this court Fed. Rep. 742, 22 C. C. A. 527. PPEAL from a decree of the Circuit Court The facts are stated in the opinion. Assistant Attorney General Hoyt and Mr. So far as the present appellant is con- Lau Ow Bew, Petitioner, 141 U. S. 583, 35 any questions or propositions of law concerning which instruction is desired for the proper decision of pending cases, and that these may be answered or the whole cause required to be sent up for consideration. And it is also provided that those cases in which the judgments or decrees of the circuit courts of appeals are made final may be required by this court, by certiorari or otherwise, to be certified to it for review and determination. This is not an appeal from the circuit court directly to this court, nor does the case fall within either of the classes of cases enumerated in § 5, in which such an appeal would lie. No question or proposition of law concern 175 U. S. ing which the circuit court of appeals desired DE The case is not before us on certiorari, but on appeal, and an appeal does not lie in those cases in which the judgments or decrees or the circuit courts of appeals are made final by the statute. Among those cases are [39] cases "arising under the *revenue laws," and as this is such a case the appeal cannot be maintained. It is true that under the act of June 10, 1890, an appeal would lie directly from the circuit courts to this court if the circuit court should be of opinion that the question involved was of such importance as to require a review of its decision by this court, and that in the order allowing this appeal the circuit court of appeals stated "that the question involved is of such importance as to require a review of said decision and decree by the Supreme Court of the United States;" but this is not an appeal from the circuit court, and, moreover, the judiciary act of March 3, 1891, prescribes a different rule as to the prosecution of appeals. In United States v. American Bell Teleph. Co. 159 U. S. 548, 40 L. ed. 255, 16 Sup. Ct. Rep. 69, it was held that this court had jurisdiction by appeal over a decree of a circuit court of appeals in a suit brought by the United States in the circuit court to cancel a patent for an invention. LA VERGNE REFRIGERATING MACHINE COMPANY, Petitioner, v. GERMAN SAVINGS INSTITUTION et al. (See S. C. Reporter's ed. 40-60.) Power of corporation to purchase stock of rival corporation to suppress competition. 1. 2. 3. 4. 5. 6. A conveyance of all the assets of a corporation is not within the power of the stockholders, even though they all sign it, without formal action at a meeting held for that purpose. It is not within the general powers of a corporation to purchase the stock of other corporations for the purpose of controlling their management, unless express permission be given them to do so. Authority to purchase "other property necesary for their business," given to manufacturing corporations by N. Y. act June 7, 1853, does not extend to the purchase of stock of similar corporations. The purchase by a manufacturing company of the stock of an insolvent rival concern which has ceased to do business, and whose stock is bought for the evident purpose of preventing a reorganization and of obtaining its patronage, is not authorized by N. Y. act April 28, 1866, chap. 838, making it lawful for a manufacturing company to hold stock in the capital of any corporation engaged in the business of mining, manufacturing, or transporting such matters as are required in the prosecution of the business of the former company, so long as they shall furnish or transport such materials for the use of such company and for two years thereafter, and no longer. No action can be maintained against a corporation on a contract prohibited by its charter. A contract with stockholders of a corporation for its assets and goodwill is without consideration, if there is no corporate action authorizing the transfer, since the assets are the property of the company, and not of its stockholders. [No. 45.] 30, 1899. WRIT OF CERTIORARI to review a The argument was pressed that the appeal could not be maintained because the decrees of the circuit courts of appeals were made final by the act in cases "arising under the patent laws," and that that was such a case. In view of the fact, however, that the United States instituted the suit as a sovereign in respect of alleged miscarriage in the exercise of one of its functions as such, it was thought that considerations of public policy forbade imputing to Congress the intention to include the case in that category. Argued April 7, 11, 1899. Decided October We observed that actions at law for infringement, and suits in equity for infringement, for interference, and to obtain patents, judgment of the Circuit Court of Apbeing brought for the vindication of rights created by the patent laws, were clearly cases arising under those laws, and came strictly within the avowed purpose of the act of March 3, 1891, to relieve this court of that burden of litigation which operated to impede the disposition of cases of peculiar gravity and general importance. But there As to power of corporations to deal in the was nothing in the objects sought to be at-stock of other corporations or their own,—see tained and the mischiefs sought to be remnote to Buckeye Marble & Freestone Co. v. Haredied by the act which furnished foundation vey (Tenn.) 18 L. R. A. 252. for the belief that Congress intended to [40] place a limitation on our appellate *jurisdiction in a suit in which the United States were plaintiffs and appellants, and which was brought in effectuation of the superintending authority of the government over the public interests. NOTE. As to estoppel of corporation to set up plea of ultra vires,-see notes to Central Transp. Co. v. Pullman's Palace Car Co. 35 L. C. W. D. Pa.) 12 L. R. A. 168, and Miller v. ed. U. S. 55; Wood v. Corry Waterworks Co. (C. American Mut. Acci. Ins. Co. (Tenn.) 20 L. R. A. 765. Power of corporation to purchase stick of other corporations for purpose of controlling their management. A corporation engaged in business of a public character will not be allowed to gain control of the stock of other corporations engaged in the same business, and so create a monopoly. People er rel. Peabody v. Chicago Gas Trust Co. 130 II. 268, S L. R. A. 497, 22 N. E. 798. A railroad company has no implied power to purchase stock in another railway company for the purpose of controlling its management. Cen65 5 peals for the Eighth Circuit, which by equal aivision affirmed the decision of the Circuit Court in favor of plaintiffs in an action for breach of a contract to deliver stock in a corporation. Reversed. See same case below, 49 U. S. App. 777, 84 Fed. Rep. 1016, 28 C. C. A. 681. Statement by Mr. Justice Brown: [40] *This is a consolidation of eight actions brought by the German Savings Institution and seven other plaintiffs, in the circuit court of the city of St. Louis, against the De la Vergne Refrigerating Company and John C. De la Vergne, its president and principal stockholder, personally, for a failure to deliver to plaintiffs certain stock in the Refrigerating Company. Certain personal property was seized up on attachment issued, a forthcoming bond given therefor, and the several actions were afterwards removed to the circuit court for the eastern district of Missouri upon the joint petition of the defendants. In that court the several actions were consolidated [41] and submitted *upon an agreed statement of facts upon which judgment was entered for the defendants. Pending the proceedings in the state court, and on May 12, 1896, John C. De la Vergne died, and on November 5, 1896, his death was suggested to the court, when William C. Richardson, public administrator of the city of St. Louis, entered his appearance, and with his consent an order was entered reviving each of such actions against him. From the judgment so entered in the circuit court, a writ of error was taken from the circuit court of appeals, the judgment of the court below reversed, and the cause remanded with directions to grant a new trial. 36 U. S. App. 184, 70 Fed. Rep. 146, 17 C. C. A. 34. Amended answers were filed in the lower court, much testimony taken, the cause submitted to the court without a jury, and a judgment entered in favor of the plaintiffs for $126,849.96. From this judgment a writ of error was tral R. Co. v. Collins, 40 Ga. 582; Hazlehurst v. Savannah, G. & N. A. R. Co. 43 Ga. 13; Pearson v. Concord R. Corp. 62 N. H. 537. To the same effect is Milbank v. New York, L. E. & W. R. Co. 64 How. Pr. 20, in which it was held that a railway company which has acquired by purchase the majority of all the stock issued by another railroad company has no right to vote thereon, and thus acquire control of the latter corporation. A purchase of shares of a domestic corporation by a foreign corporation engaged in a similar business, for the express purpose of controlling and managing the domestic corporation, is ultra vires, and therefore unlawful and vold. Buckeye Marble & Freestone Co. v. Harvey, 2 Tenn. 116, 18 L. R. A. 252, 20 S. W. 427. A manufacturing corporation has no implied power to purchase the stock of an insolvent rival concern which has ceased to do business, with the evident purpose of thereby preventing a reorganization and of obtaining its patronage. DE LA VERGNE REFRIGERATING MACH. Co. v. GERMAN SAV. INST. prosecuted by the Refrigerating Company, one of the defendants. The judgment was affirmed by the court of appeals by an equal division. 49 U. S. App. 777, 84 Fed. Rep. 1016, 28 C. C. A. 681. Whereupon the Refrigerating Company applied for and was allowed a writ of certiorari from this court. Messrs. Frederick W. Lehmann and Charles H. Aldrich argued the cause and, with Mr. Charles Nagel, filed a brief for petitioner: The assets of the consolidated company, insolvent, being in the hands of an assignee under the insolvent laws of Illinois, and in due process of administration, the stock owned by the respective respondents was the only thing attempted to be delivered under the contract, and must therefore be deemed the subject of the contract. Humphreys v. McKissock, 140 U. S. 304, 35 L. ed. 473, 11 Sup. Ct. Rep. 779; Smith v. Hurd, 12 Met. 371, 46 Am. Dec. 690; Chicago, R. I. & P. R. Co. v. Howard, 7 Wall. 392, 19 L. ed. 117; Whistler v. Forster, 14 C. B. N. S. 248; Fawcett v. Osborn, 32 Ill. 411, 83 Am. Dec. 278; Burton v. Curyea, 40 Ill. 320; Story, Sales, 3d ed. §§ 188, 423; Lunn v. Thornton, 1 C. B. 379; Huling v. Cabell, 9 W. Va. 522, 27 Am. Rep. 562; Low v. Pew, 108 Mass. 349, 11 Am. Rep. 357. The stock of the Consolidated Ice Machine Company was a part of the consideration for the promise of the De la Vergne Company to pay $100,000 in its own stock or in cash. The contract was ultra vires of the vendee company, and therefore illegal and void. N. Y. Laws 1848, chap. 40, § 8; N. Y. Laws 1890, chap. 564, § 40; Boone, Corp. § 107; Green's Brice, Ultra Vires, p. 91, note b; Morawetz, Priv. Corp. §§ 431, 433; People ex rel. Peabody v. Chicago Gas Trust Co. 130 Ill. 268, 8 L. R. A. 497, 22 N. E. 798; Milbank v. New York, L. E. & W. R. Co. 64 How. Pr. 20; Talmage v. Pell, 7 N. Y. 328; St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co. 145 U. S. 393, 36 L. ed. 738, 12 Sup. Ct. Rep. 953; Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 24, 35 L. ed. Even where a corporation has the statutory right to purchase stock of another company, it has no right, as the owner of a majority of the stocks and bonds of such company, to manage its affairs so as to cause a default on a mortgage, and obtain control of the property by foreclosure at less than its value, to the injury of the minority stockholders. Farmers' Loan & T. Co. v. New York & N. R. Co. 150 N. Y. 410, 34 L. R. A. 76, 44 N. E. 1043. A corporation cannot become an incorporator by subscribing for capital stock of a proposed corporation, with the intention of conducting the same as its own private enterprise. Nor can it accomplish this purpose indirectly through its officers or employees as pretended incorporators and subscribers for the stock. Central R. Co. v. Pennsylvania R. Co. 31 N. J. Eq. 475. A timber company has no authority to purchase bank shares for the avowed purpose of obtaining the virtual control of the bank, and thus effect loans to the company by conducting the bank through its agents. Sumner v. Marcy, 3 Woodb. & M. 105, Fed. Cas. No. 13,609. |