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"Section 2293, Utah Comp. Laws 1888, as amended in 1896, and §§ 351 and 352, Rev. Stat. 1898, expressly embody these provisions of the Constitution, and prohibit foreign corporations from doing business in this state, unless they have complied with these requirements of the law; and any corporation failing to so comply with the provisions of the law is not entitled to the benefits of the law of this state relating to corporations.

"While the testimony is very uncertain, it sufficiently appears that whatever was[584] done by Nunn in the appropriation of water was done for the use and benefit of the defendant company, and he cannot be treated as a personal claimant and owner of the easement and right of way in controversy as against the right of way acquired by respondent."

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From this excerpt it appears that the supreme court construed the statutes and "The appellant corporation did not com- Constitution of Utah, deciding that the ply with the laws of this state, and has no power company had no existence as a corpower to engage in its business of mining, poration in the state, and could acquire, or to acquire any water rights under the therefore, no rights as such, and "was not laws of this state. A corporation of Colo- in a position to question the right of the rado coming into this state cannot bring plaintiff [defendant in error] in the prem[583] with it powers with which it is not en- ises. And no independent right was found dowed in Colorado. It can only have an ex- in Nunn. What was done by him the court istence under the express laws of the said was done "for the use and benefit of state where it is created, and can ex- the defendant company." And it was deercise no power which is not granted cided that he was not "a personal claimant by its charter or some legislative act. and owner of the easement and right of way The appellant corporation never filed with in controversy as against the right of way the secretary of state of the state of acquired by respondent [plaintiff in error].' Utah a copy of its articles of incorpora- These conclusions did not involve the decition, by either name under which it was in- sion of Federal questions. The first excorporated, and never accepted the laws or pressed the meaning and effect of local statConstitution of Utah, nor has it appointed utes. The second depended upon a finding any agent or fixed any place of business of fact. Neither, therefore, is reviewable within the state as required by law. The by us. defendant corporation, therefore, is not en- The whole controversy was and is as to titled to the benefit of the laws of this state, the right to occupy Provo cañon, the dewith reference to corporations. State v. Southern P. Co. 52 La. Ann. 1822, 28 So. 372; Oregon R. & Nav. Co. v. Oregonian R. Co. 130 U. S. 1, 32 L. ed. 837, 9 Sup. Ct. Rep. 409; George R. Barse Live Stock Co. v. Range Valley Cattle Co. 16 Utah, 59, 50 Pac. 630.

"Under § 2339, Rev. Stat. [U. S. Comp. Stat. 1901, p. 1437], even if priority of possession of the property in question was shown in the defendant corporation, still its right to locate and use the water or land is not recognized or acknowledged by the laws of this state, and it was not in a position to question the right of the plaintiff in the premises.

"5. Appellant Nunn was a resident of Colorado, the general manager and in charge of the business of the defendant corporation, both in Colorado and Utah. The chief engineer, hydraulic engineer, and officers of the defendant corporation, including the president and attorneys, consulted with and acted with him with respect to the acts performed with reference to the appropriation of water and in making the improvements discussed by them, at Hanging Rock, but no plan for a dam at Hanging Rock was ever actually made, and no dam was constructed there. Throughout the whole procedure the board of the defendant corporation was the controlling authority for and with whom Nunn acted. If Nunn had any right, it was with reference to the smaller power located below. The dam at Hanging Rock was to be a larger power, and was talked about in the project, but it was not constructed, and the ownership, if in anyone, was in the defendant company, which was incapable of acquiring such ownership.

fendant in error claiming that right for a
railroad, the plaintiffs in error claiming
that right for a reservoir site, and this lat-
ter right plaintiffs in error claimed and
claims under § 2339 of the Revised Statutes
of the United States [U. S. Comp. Stat.
1901, p. 1437]. That section was and is
their reliance. They say in their brief that
they "do not claim to hold the land in con-
troversy" under the alleged contract with
Ferguson.

"They claim to have obtained title to it
under § 2339 of the Revised Statutes of the
United States by entering upon it and ap-
propriating it as a reservoir site, and this
contract (the contract with Ferguson) only
amounted to a waiver of Ferguson's rights
as a squatter in favor of plaintiffs in error."

But their rights under that section depended upon questions of fact and questions of local law. The questions of fact were found against plaintiff in error, and the questions of local law we cannot review.

A Federal question is asserted because of the ruling of the district court refusing to [585] remove the case to the United States circuit court upon the petition of plaintiffs in error. But upon the denial of the application to remove they filed the record in the circuit court of the United States, and that court remanded the cause, and a copy of its order was filed in the district court before the commencement of the trial. In substantially similar circumstances we Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556, 40 L. ed. 536, 16 Sup. Ct. Rep. 389, that if error there had been in the ruling of the state court it became wholly immaterial. Writ of error dismissed.

held in

E. M. AYRES, Piff. in Err.,

v.

JOHN H. POLSDORFER and Wife, Louisa M. Polsdorfer.

(See S. C. Reporter's ed. 585–596.)

Appeal error to circuit court of appealsmotion for certiorari-when made in time.

1. A judgment of the circult court of appeals, in a case in which the jurisdiction of the circuit court was invoked solely on the ground of diverse citizenship, cannot be reviewed In the Supreme Court of the United States on writ of error because a Federal question arose in the course of the proceedings in the circuit court, even though such question may not be of such a character as would permit the case, under § 5 of the judiciary act of

1891 (26 Stat. at L. 826, chap. 517, U. S.

Comp. Stat. 1901, p. 488), to be brought di

rectly from the circuit court to the Supreme

Court.

2. Certiorari to the circuit court of appeals, sought because of the apprehension that a writ of error was improperly sued out, will not be granted where the judgment sought to be reviewed was rendered December 7,

1900, a rehearing denied February 23, 1901, the writ of error brought April 15, 1901, and the record filed and case docketed April 29, 1901, and the motion for such certiorari was not made until October 9, 1902.

[No. 89.]

and their possession, and alleged the entry of the defendants as follows:

"And the plaintiffs being so entitled to the said property, and so in possession thereof, the said defendants, to wit, on the said October 1st, 1898, at the said county of Lauderdale, unlawfully and without right entered into and upon the said premises, and falsely and unjustly set up title thereto, as in them respectively, and cut timber therefrom and removed the same and exercised acts of ownership thereof under such false and unjust claim of title, and denied and refused to recognize the claim of these plaintiffs to the title, or their possession thereunder, and wholly refused to admit and repudiated the same, as they still do." Judgment for the recovery of the land was prayed, and $3,000 damages.

Price pleaded not guilty. The plaintiff in error also pleaded not guilty, and "that plaintiff's action accrued more than seven years before suit brought." Against the other defendants no judgment was sought.

Upon the issues thus joined, the jury found for the plaintiffs (defendants in error) as follows:

"That they find that the plaintiffs are the owners in fee and entitled to and in possession of the following lands, situated in Lauderdale county, Tennessee, to wit: . . ." They also further found

"That the plaintiffs are the owners in fee, and entitled to all the accretions and alluvion formed by the Mississippi river in front Argued November 13, 1902. Decided Janu- of the said three (3) tracts of land above ary 5, 1903.

described, the same being and constituting all the land added by accretion and alluvion N ERROR to the United States Circuit to the river front, as such front of the said

to review a judgment which dismissed a
writ of error from that court to review a
judgment of the Circuit Court for the West-
ern Division of the Western District of
Tennessee.

On motion to dismiss. Dismissed.
Motion for certiorari denied.

See same case below, 45 C. C. A. 24, 105
Fed. 737.

Statement by Mr. Justice McKenna: Ejectment and trespass brought in the circuit court of the United States, western division of the western district of Tennessee, for the recovery of lands and damages. Part of the land is an island the Mississippi river. The declaration was in the usual form, and the ground of jurisdiction in the circuit court was diversity of citizenship, expressed as follows:

"The plaintiffs, who are citizens of the state of Indiana, residing at Evansville, therein, complain of the defendants, Joe C. [586] Marley, *Thomas Price, E. J. Roy, T. A. Roy, L. R. Coleman, and E. M. Ayers, who are citizens of the state of Tennessee, residing in the western division of the western district thereof, in an action of trespass and ejectment."

The declaration alleged ownership in fee of the plaintiffs (defendants in error here)

on

sippi river when the said tracts of land respectively were granted, and extending from and including all the accretions and alluvion in front thereof, *from the line on the[587] river of the tract first mentioned above, furthest up stream.

As to the other land herein sued for not embraced in the above descriptions, the jury finds the plaintiffs are not entitled to the same."

Judgment was entered in accordance with the verdict. To this judgment plaintiff in error sued out a writ of error from the circuit court of appeals of the sixth circuit, which was dismissed upon the motion of defendant in error, on the ground that there had been no summons and severance of the defendant Thomas Price. 45 C. C. A. 24, 105 Fed. 737. A petition for rehearing was filed but denied. This writ of error was then sued out.

The assignments of error are as follows: "1. The court erred in dismissing the writ of error of petitioner upon the ground that the judgment was against two jointly, and that they did not join in the appeal.

"2. The court erred in dismissing the petition for rehearing made by this petitioner. "In support of this assignment he subits herewith counsel's brief No. 2.

"3. The court erred in refusing to enter- | 1425], had been set up jurisdiction tain jurisdiction of this cause and not re- had "already attached, and could not versing it upon the merits. And in support be affected by the subsequent develof this he refers to the assignment of error, opments." Jurisdiction, it was said, Record, pp. 266, 273, and submits herewith "depended entirely upon diverse citizenship his counsel's brief thereon No. 3. when the suit was commenced, and to that "The ground of this application is that point of time the inquiry must necessarily the record in this cause shows that peti- be referred." The same idea was expressed tioner claimed under muniments of title in subsequent cases, though in somewhat [589] from the state of Arkansas and Polsdorfer different language. But a distinction was and wife, and also Price claimed under not precisely made between the questions muniments of title from the state of Ten- embraced in § 5 and other Federal quesnessee. In other words, petitioner claims tions. That distinction was presented in that he has a right to the writ of error un-Loeb v. Columbia Twp. 179 U. S. 472, 45 L. der the Constitution of the United States, ed. 280, 21 Sup. Ct. Rep. 174. art. 3, § 2."

The case was an action upon bonds issued by the township for the purpose of raising Messrs. J. B. Heiskell and T. B. Tur-money to meet the cost of widening and exley argued the cause, and, with Mr. C. W. Heiskell, filed a brief for plaintiff in error. Mr. Wassell Randolph argued the cause, and, with Messrs. William M. Randolph and George Randolph, filed a brief for defendants in error.

Contentions of counsel sufficiently appear in the opinion.

tending a certain avenue within its limits.
There was a demurrer to the petition, and
it appeared from the opinion of the court
that one of the points raised on the demur-
rer was that the act of the general assembly,
under and by virtue of which the bonds were
issued, contravened the Constitution of the
United States, and therefore the bonds were
void. The case came directly from the cir

Mr. Justice McKenna delivered the cuit court to this court. A motion was opinion of the court:

A motion is made to dismiss on the ground that the judgment of the circuit court of appeals was final, and therefore it is not reviewable by writ of error from this

court.

Interpreting the judiciary act of 1891 [26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488], we said, in McLish v. Roff, 141 U. S. 661, 666, 35 L. ed. 893, 894, 12 Sup. Ct. Rep. 118, 120, that its purpose was to provide "for the distribution of the entire appellate jurisdiction of our national judicial system between the Supreme Court of the United States and the circuit courts of appeals therein established, by designating the classes of cases in respect of which each of those two courts shall respectively have final jurisdiction."

made to dismiss for want of jurisdiction. The motion was denied, notwithstanding the petition in the circuit court showed that the parties were citizens of different states, and stated no other grounds of jurisdiction. If nothing more appeared, it was said, bearing upon jurisdiction, "it would be held that this court was without authority to review the judgment of the circuit court." But, as we have seen, the claim had been made in the circuit court by the defendant that the statute of Ohio, by the authority of which the bonds were issued, was in contravention of the Constitution of the United States. It was contended that such claim inade by the defendant was not sufficient to give this court jurisdiction, upon a writ of error, to review the final judgment of the circuit court sustaining such claim. It was But special questions arose. It was pro answered, "such an interpretation of the vided in § 6 that the judgments and decrees 5th section is not justified by its words. of the circuit court of appeals should be Our right to review, by the express words final in all cases in which jurisdiction was of the statute, extends to 'any case' of the dependent entirely upon diversity of citi-kind specified in the 5th section." And this zenship. What jurisdiction was meant, and what would be the effect if Federal questions should appear in the proceedings after the commencement of the case? In Robinson v. Caldwell, 165 U. S. 359, 41 tions were answered in Colorado Cent. Con- L. ed. 745, 17 Sup. Ct. Rep. 343, it had been sol. Min. Co. v. Turck, 150 U. S. 138, 37 L. | decided that "it was not the purpose of the ed. 1030, 14 Sup. Ct. Rep. 35. judiciary act of 1891 to give a party who In that case the jurisdiction of the cir- was defeated in a circuit court of the United cuit court was invoked on the ground of di-States the right to have the case finally deversity of citizenship, but the defendant termined upon its merits, both in this court claimed to have set up in defense a Federal and in the circuit court of appeals." *This [590] question arising under § 2322 of the Revised was affirmed in Loeb v. Columbia Twp. It Statutes of the United States [U. S. Comp. was there observed that the plaintiff in that Stat. 1901, p. 1425], and on that ground in action could have carried the case to the sisted that the judgment of the circuit circuit court of appeals, but, had he done so, court of appeals in the case was not final. "he could not thereafter have invoked the Rejecting the contention and dismissing the jurisdiction of this court upon another writ writ of error, this court held that before the of error to review the judgment of the cirdefense under § 2322 of the Revised cuit court." Statutes [U. S. Comp. Stat. 1901, p.

The ques

view was affirmed in Huguley Mfg. Co. v.
Galeton Cotton Mills, 184 U. S. 290, 46 L.
ed. 546, 22 Sup. Ct. Rep. 452.

Therefore, when the jurisdiction of the

circuit court is invoked solely on the ground | jurisdiction of the circuit court was inof diversity of citizenship, two classes of voked on account of diverse citizenship, but cases can arise, one in which the questions they further disclosed that the defendants expressed in § 5 appear in the course of the were corporations organized under the laws proceedings, and one in which other Federal of the United States." It is then asked: questions appear. Cases of the first class may be brought to this court directly, or may be taken to the circuit court of appeals. But if taken to the latter court they cannot then be brought here. Cases of the second class must be taken to the circuit court of appeals, and its judgment will be final. The case at bar falls under one or under the other of those classes.

"Suppose a ground of Federal jurisdiction not embraced in § 5 of the act of 1891, and in which the judgment or decree of the circuit court of appeals is not conclusive, is first disclosed by defendant's plea, or by subsequent proceedings, in a case in which the original jurisdiction of the circuit court was invoked solely on the ground of diverse citizenship, or on one of the other grounds

appeals is final. If, in such case, there was
a judgment against the defendant, and he
carried the case by writ of error or appeal
to the circuit court of appeals, and judg-
ment was there rendered against him, and
he then sought to bring the case to this
court by writ of error or appeal, how would
it stand in this court?"

The declaration was ejectment and tres-in which the decision of the circuit court of pass in the form used in the local practice. The only ground of jurisdiction was that the plaintiffs were citizens of the state of Indiana, and the defendants were citizens of the state of Tennessee. The answers were simply traverses in statutory form of the wrongs alleged in the declaration. The plaintiffs in the case recovered, and the plaintiffs in error here carried the case to Answering the question, counsel say if the circuit court of appeals. The Federal the doctrine of Colorado Cent. Consol. Min. question arose in the course of the proceed Co. v. Turck be enforced, and the writ of erings in the circuit court, and is claimed to ror dismissed, the result would be that have been, and to be, based on grants of "wherever a case involved two grounds of [592] lands from different states, the conflict Federal jurisdiction, neither of which is arising between grants from the state of embraced in § 5 of the act of 1891, and as to Tennessee to defendants in error and to one of which the judgment or decree of the Price, under which they respectively circuit court of appeals is final, and as to claimed title, and a tax deed introduced in the other is not final, then the plaintiff suevidence by plaintiff in error, which was ing in the circuit court can, by invoking its made by the officials of Mississippi county, jurisdiction solely on the ground as to Arkansas, and under which deed he claimed which the judgment or decree of the circuit title. Granting, for argument sake, there court of appeals will be final, deprive the was an opposition of grants within the defendant of the right given him to carry meaning of the provision of the Constitu- the case from the circuit court of appeals tion defining the judicial power of the to this court by writ of error or appeal. United States, it would seem to bring the Such a result would be contrary to the princase within the doctrine of Loeb v. Colùm-ciple laid down in Loeb v. Columbia Twp. bia Twp., both as to the question raised and the manner of its review, and the plaintiff in error, having sued out a writ of error [591] from the circuit court of appeals, cannot now come to this court upon another. The plaintif in error, however, denies that this consequence results from Loeb v. Columbia Twp., and insists that the principle of the case justifies the present writ of error. The The contention has been answered by that argument is that, when a Federal question which we have already said. Besides, counnot embraced in § 5 is disclosed by defend- sel are wrong in their premises. Northern ant's plea, or by subsequent proceedings, P. R. Co. v. Amato and Union P. R. Co. v. and there is judgment against the defend-Harris were not cases in which the jurisdicant, if he be denied the right to carry the tion was invoked on the grounds of diversicase from the circuit court of appeals to ty of citizenship. The first was brought in this court, that the "result would be con- a state court and removed to the circuit trary to the principle laid down in Loeb v. court of the United States, on the ground Columbia Twp." And it is insisted "there that, being a case against a corporation creare cases of Federal jurisdiction which are ated by Congress, the suit arose under a law not embraced under § 5 of the act of 1891, of the United States. The other case was in which the judgment or decree of the cir- brought in the circuit court of the United cuit court of appeals is not final under § 6 States and the Federal character of the corof said act;" and Northern P. R. Co. v. Am-poration, following previous authority, was ato, 144 U. S. 471, 36 L. ed. 508, 12 Sup. Ct. Rep. 740, and Union P. R. Co. v. Harris, 158 U. S. 326, 39 L. ed. 1003, 15 Sup. Ct. Rep. 843, are cited as examples. It is said that "in these [those] cases the declaration or complaints disclosed that the original

172 U. 3. 472, 45 L. ed. 280, 21 Sup. Ct.
Rep. 174, which case, it will be seen, dis-
countenances the idea that one party can,
by the method or way in which he brings
his suit, deprive the other of a right of re-
view by this court."

We have quoted at length from counsel to
exhibit their contention in full.

held to have constituted a ground of jurisdiction independent of the citizenship of the parties. We questioned the consistency of the reasoning upon which the conclusion was based, but recognized and yielded to authority, and we assigned the case to that

class of cases which was not dependent sole- | cases between citizens of the same state
ly upon diversity of citizenship.
claiming under grants of different states?

Loeb v. Columbia Twp. does not hold broadly that the plaintiff, "by the method "Parties claiming under grants from difor way in which he brings his suit," can ferent states are allowed to come into the "deprive the other of a right to review by Federal court in order to obtain an imparthis court." It only denies the right of re- tial trial. The question as to the validity view of the merits in this court and in the of the grants we may say never depended circuit court of appeals, and the limitation upon any construction of the Constitution [593]is *reasonable considering the purpose of the of the United States. Hence it is, we insist, statute. Its purpose was undoubtedly to that, not being enumerated specifically in § hasten the results of litigation and to re- 5 of the act of 1891, cases of parties claimlieve this court of its burden of cases. This ing under grants of different states are not could only be accomplished through the me- embraced therein, nor are they embraced in dium of another appellate tribunal. And the classes of cases enumerated in § 6 of of what cases it should have jurisdiction the act of 1891, in which the judgment and and its relation to this court, was naturally decree of the circuit court of appeals is expressed in general language. Interpreta- final. If we are right in this, the result is tion, as we have said, was soon demanded that the writ of error should be maintained, and responded to, and the appellate power it being sufficient under the case of Loeb v. of this court and that of the circuit court Columbia Twp. that the question appears of appeals definitely assigned. If the as- definitely elsewhere in the record." signment leaves some cases unreviewable by this court, it, by that very effect, fulfils the purpose of the act of 1891. Against the assignment reasons, of course, may be urged, and counsel has seen and forcefully presented them.

Another argument is used by plaintiff in error to bring this case within Northern P. R. Co. v. Amato, Union P. R. Co. v. Harris, and Loeb v. Columbia Twp. It is, that the Federal question raised, to wit, the claim of grants under different states, does not involve the construction or application of the Constitution of the United States, and therefore is not within that clause of § 5 which provides for appeal or writ of error direct to this court. To so hold, it is claimed, would wake all the other divisions of § 5 but nominal, and make all the cases arising under them involve the construction of the Constitution of the United States. That, it is claimed, was not the purpose of the section, "upon the familiar principle that the enumeration of six particular classes is a limitation upon the scope and effect of each particular class."

That clause, therefore, it is finally said, does not embrace the cases included in the other clauses. And, extending the argument, it is further said:

"It does not embrace cases of diverse citizenship, nor cases between citizens of the United States and aliens, nor patent cases,

nor

revenue cases, in which the United States is a party, nor criminal cases involving a crime less than capital or infamous, nor admiralty cases, for all these cases are provided for in § 6 of said act.

"The Constitution of the United States [594] gives the courts of the United States jurisdiction in cases between citizens of different states, and between citizens of the same state, claiming lands under grants from different states.

"If "the construction or application of the Constitution of the United States,' as used in 5 of the act of 1891, does not embrace cases between citizens of different states, upon what ground can it be said to embrace

The contention seems to be opposed to the assignments of error. The third assignment of error is "that the record in this cause shows that petitioner claimed under muniments of title from the state of Arkansas and Polsdorfer and wife, and also Price claimed under muniments of title from the state of Tennessee. In other words, petitioner claims that he has a right to the writ of error under the Constitution of the United States, art. 3, § 2."

But we may pass that, as we are not called upon to concede or deny that a case in which conflicting grants from different states to citizens of different states appear is one arising under the Constitution of the United States. If it be such a case it should be brought here directly from the circuit court, and Loeb v. Columbia Tup. applies. If it be not such a case, the other cases which we have cited apply. There is *noth- [595] ing to the contrary in Northern P. R. Co. v. Amato or Union P. R. Co. v. Harris. In such cases it always appears at the outset that one of the parties is a Federal corporation.

The final contention of plaintiff in error is that the principle of Colorado Cent. Concol. Min. Co. v. Turck, and kindred cases, is based "to a great extent on the doctrine that the act of 1891 was not intended to give a party, defeated in the circuit court, the right to have his case determined upon its merits both in this court and in the circuit court of appeals." And that "plaintiff in error has had no trial on the merits in the circuit court of appeals or in this court.' This is claimed because the circuit court of

appeals dismissed the case on the ground that Price, who was a defendant in the circuit court, was not made a party to the writ of error, nor as to him had there been summons and severance.

That the ruling was error we are not called upon to say. Granting it to have been error, we are powerless to review it. The expression as to the determination of a case "upon its merits" was used in distinction to the review of a question of jurisdic

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