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the jurisdictional rule that a corporation, circuit court in the present case. But it is for purposes of suing and being sued in the settled that the jurisdiction of a court of courts of the United States, is, under the the United States must appear from disConstitution and laws of the United States, tinct allegations, or from facts clearly to be deemed a citizen of the state by whose proven, and is not to be established argulaws it is created, nevertheless, this court mentatively or by mere inference. The preshould accept the judgment of the highest sumption is that a cause is without the court of a state upon the question whether jurisdiction of a circuit court of the United a particular body created by its laws is or States unless the contrary affirmatively and is not a corporation, by virtue of those laws, distinctly appears. Brown v. Keene, 8 Pet.

. unless a contrary view is demanded by most 115, 8 L. ed. 886, and other cases above cogent reasons involving or affecting the cited. constitutional and statutory jurisdiction of For the reasons stated the first question the Federal courts. No such reasons exist must be answered in the negative. To the in this case; and, accepting the above deci- second question our answer is that as the sion of the supreme court of Ohio as correct- board was entitled to sue and be sued by ly interpreting the Constitution and laws their collective name, and would be bound by of that state, we hold that while the de- any judgment rendered against it in that fendant board is clothed with some, it is not name, the jurisdiction of the circuit court clothed with all, of the functions belonging would have sufficiently appeared, so far as to technical corporations, and is not such a the pleadings were concerned, without bringcorporation as may suė and be sued in a ing the several persons constituting the circuit court of the United States as a citiboard before the court as defendants, prozen of Ohio. A contrary ruling would, we vided the bill had contained the additional apprehend, produce confusion and embar- allegation that each individual trustee was rassment in litigation relating to those pub- a citizen of Ohio. Each branch of the third lic state institutions or agencies in Ohio question must be answered in the negative. which, according to the decision of its high. These answers will be certified to the cir. est court, were not endowed, nor intended cuit court of appeals, with liberty to that to be endowed, with corporate powers. court to authorize such amendment of the

It is contended, however, that the bill suf- bill in the circuit court as will show juris ficiently shows that the persons constituting diction. the Board of Trustees of the Ohio State Uni- It is so ordered. versity were in fact citizens of Ohio, and therefore, as the board had power to sue

(195 U. S. 322) and be sued, and to contract and be contracted with, in its collective name, the METROPOLITAN RAILROAD COMPANY, requisite diversity of citizenship sufficiently

Appt. and Piff. in Err., appeared from the pleadings. This contention is not warranted by any distinct aver- HENRY B. F. MACFARLAND, Henry L. ments in the bill. The bill contains no such West, and John Biddle, Commissioners averment. As already stated, it alleges that of the District of Columbia. the board is a citizen of Ohio; not that the trustees are citizens of that state. As al. Review in condemnation proceedings-error, ready stated, the bill does not, in terms,

not appeal, the proper remedy-necessity even allege that the board is a corporation,

of bill of exceptions. although it shows that it possesses some of

1. Writ of error, and not appeal, is the only the characteristics of corporations. The

mode of reviewing a judgment of the court of Constitution of Ohio provides that no person appeals of the District of Columbia, sustain. shall be elected or appointed to any office in ing an assessment and award in condemna. the state unless he possesses the qualifica

tion proceedings instituted under the act of tions of an elector; and an elector must be a

Congress of June 6, 1900 (31 Stat. at L. 668,

chap. 810), in view of the provision of D. C. citizen of the state (Const. art. 15, § 4, art.

Code, $ 233 (31 Stat. at L. 1227, chap. 854), 5, § 1); therefore it must be taken, not only that the power to review judgments or de that each trustee of the Ohio State Univer- crees of that court is to be exerted only in sity holds an office within the meaning of

the same manner, and under the same regulathe state Constitution, but is in fact a citi

tions, as prevailed before its organization in

cases of writs of error to, or appeals from, the zen of that state; and the allegation that

supreme court of that District. the board was created by, and existed as, an 2. Errors of the court below, committed in susorganized body under the laws of Ohio, was taining the refusal of the trial court to give equivalent to an allegation that the trustees certain requested instructions or to set aside are each and all citizens of Ohio. Such is

an assessment in condemnation proceedings,

cannot be considered on writ of error, in the the process of reasoning by which it is at

absence of any bill of exceptions, allowed and tempted to support the jurisdiction of the authenticated by the trial judge, altbough the


transcript contains what purport to be cer- certain and fix the benefits which would retain instructions asked and refused, marked sult from the work, not only to the lot filed by the clerk, and a petition to make cer

owners, but to the Metropolitan Railroad tain testimony of record, and other papers concerning the evidence given before the jury, Company, and the sum of the benefits was and an agreement between counsel, reciting directed to be assessed against the railroad that the court allowed the prayer of such pe- company and the lot owners. Power was tition.

conferred upon the court to hear any ob

jections which might be made to the verdict, [No. 16.]

and to set it aside in whole or in part if

the court were satisfied that it was unjust Argued October 24, 1904. Decided Novem- or unreasonable. ber 28, 1904.

Section 13 of the act is as follows:

"Sec. 13. That no appeal by any interestA

PPEAL from, and IN ERROR to, the ed party-from the decision of the supreme

Court of Appeals of the District of Co- court of the District of Columbia confirmlumbia, to review an affirmance of an order ing the assessment or assessments for beneof the Supreme Court of that District, which fits or damages herein provided for, nor any sustained an assessment and award in con other proceedings at law or in equity by demnation proceedings. Appeal dismissed such party against the confirmation of such and judgment affirmed on writ of error. assessment or assessments, shall delay or preSee same case below, 20 App. D. C. 421. vent the payment of the award to others in

respect to the property condemned nor the Statement by Mr. Justice White: widening of such streets: Provided, however,

Upon this record the Metropolitan Rail. That upon the final determination of said aproad Company seeks, both by appeal and peal or other proceeding at law or in equity, writ of error, to obtain a review of the ac- the amount found to be due and payable as tion of the court of appeals of the District damages sustained by reason of the widenof Columbia, affirming an order of the su- ing of the streets under the provisions herepreme court of the District, which order of shall be paid as hereinbefore provided." sustained an award against the company, The transcript before us shows that in contained in the verdict of a jury, rendered July, 1900, the commissioners of the Disin condemnation proceedings, under an act trict instituted the proceedings in condemof Congress. 31 Stat. at L. 668, chap. nation required by the act, and that, among 810. The statute referred to is entitled, others, the Metropolitan Railroad Company "An Act Authorizing and Requiring the was made a party. A jury having been emMetropolitan Railroad Company to Ex- paneled, they were directed by the court to tend Its Lines on Old Sixteenth Street.” view the premises, and, outside of the presBriefly, the act authorized and required ence of the court, to hear such evidence as the company to extend its lines over the might be produced by the interested parties, streets to which the act referred, and, and to return their verdict to the court, for the purpose of enabling this to be soon afterwards the railroad company filed done, directed the commissioners of the Dis- an answer praying that it might be district to commence the necessary proceed- missed from the proceedings, because the ings to acquire the land needed for the act of Congress requiring the company to widening of the streets. was directed extend its lines was unconstitutional, and that the condemnation proceedings should because the company could not be made liabe commenced in the supreme court of the ble for any assessment for benefits conferred District, upon notice, under the supervision upon it by the proposed work, as it owned of the court, to all interested parties. A no property in the District embraced by the jury of seven was directed to be empaneled improvement. Immediately following the by the court, and this jury, after organize answer of the railroad company is set out ing and viewing the premises, were to "pro- what purports to be instructions asked by ceed, in the presence of the court, if the the railroad company to be given by the court shall so direct, or otherwise, as the court to the jury. Each of these instruccourt may direct, to hear and receive such tions is marked by the clerk as filed on a evidence as may be offered or submitted on named date, and below each instruction, unbehalf of the District of Columbia, and by accompanied by any certificate from a judge, any person or persons having any interest is the statement, “Rejected, with permission in the proceedings for the extension of said to present later.” Following these papers street.” The act required the jury to re- is what purports to be a notice on behalf of turn a written verdict fixing the amount of the railroad company that, on a given day, damages sustained by the lot owners by it would present a request to the court for reason of the taking of their property for the giving of the refused instructions as the widening of the streets, and also to as- 'well as of others; and the paper in ques. tion, as also the instructions referred to in A. B. Hagner, Justice." The transcript then it, are marked filed by the clerk on a date sets out what purports to be the affidavits named, and below some of the instructions, and testimony of Lackey, referred to in the without any certificate whatever by the petition. judge, is a recital, “Rejected, and excep- It is also shown that, upon a subsequent tion by the Railroad Company,” or “Grant- date, the supreme court of the District, ed, and exception by D. C. and also by G. after due notice to all interested parties, F. Williams, on behalf of certain property and after hearing arguments of counsel upowners."

on the exceptions to the verdict, overruled The transcript shows that the jury re- the exceptions, and entered a final decree turned a verdict to the court, fixing the confirming the award and assessment as damages and benefits, and that there was as- found by the jury, except in a minor parsessed against the railroad company, for ticular, which need not be noticed. There is benefits, the sum of $25,000. A rule nisi nothing in the transcript showing that any was entered to confirm the verdict, and the exception was reserved to the overruling of railroad company filed the following excep- the objections to the award interposed by tions:

the company, and no bill of exceptions is "The Metropolitan Railroad Company ex. shown to have been allowed by the judge. cepts to the finding, assessment, and award Immediately at the foot of the final decree against it for alleged benefits to it from the appears the following: proposed widening and extension of the said "And from so much of the above decree Columbia road and Sixteenth street, and as overrules its exceptions and confirms the for cause or ground of exception shows: verdict, award, and assessment against it,

“1. That the said finding, assessment, and the Metropolitan Railroad Company appeals award are without evidence to support the in open court, and the penalty of the appeal same.

bond is fixed by the court at $100. “2. That the said finding, assessment, and

A. B. Hagner, Asso. Justice." award are contrary to the evidence.

Next follows a stipulation signed by the “3. That the said finding, assessment, and attorneys for the District and for the railaward are contrary to the weight of the road company as to what should constitute evidence.

the transcript of record for the purposes of “4. For errors of law in the instructions the appeal of the Metropolitan Railroad given and refused by the court to the jury, Company. Item 11 reads as follows: over the objection and exception of the Met- “Petition of Metropolitan Railroad Co. ropolitan Railroad Company, before the said to make of record certain testimony, and finding, assessment, and award were made, allowance of same, filed November 24, 1900. as shown by the record of the said cause." “Motion to vacate order on said petition.”

After the filing of these exceptions the The motion last referred to, however, does transcript shows that a paper .was filed by not appear in the transcript. the clerk, which is styled “Petition of Met- On the appeal of the railroad company ropolitan R. R. Co., to make of record tes the court of appeals affirmed the order aptimony as to the benefits to Metropolitan pealed from (20 App. D. C. 421), and from Railroad Company.” In this petition it is its action in so doing the railroad comrecited that the evidence before the jury was taken outside of the presence of the pany prayed, and was allowed, an appeal to court, and that the only testimony before attorney for the railroad company filed in the jury on the subject of the benefits to said court of appeals a motion in the cause, the railroad company, as shown by affidavits

reading as follows: annexed to the petition, was that of James B. Lackey, which was reduced to writing counsel, and shows to the court that because

“And now comes the appellant, by its by a stenographer. The court was asked to of the fact that the record in this cause allow the affidavits and deposition to be

contains what may possibly be considered a filed as part of the record, “the same being essential to the hearing and determination bill of exceptions, it may be that the propof this respondent's exceptions to said er remedy would be held to be a writ of eraward, filed in this cause, and it being im- ror instead of an appeal to the Supreme

It therefore possible for this respondent properly to de. Court of the United States. fend its rights in the premises without, in prays that this honorable court, in addition some way, causing the said evidence, and to the appeal which was granted to it to the fact that it was the only evidence in the the Supreme Court of the United States in case upon the question of said benefits to this cause on the 24th day of October, 1902, this respondent, to appear of record.” Upon it may also be allowed a writ of error to said this petition the following indorsement is court, and that the supersedeas bond reshown: “Let the within petition be filed. 'quired upon said appeal may also be taken and accepted as a supersedeas bond upon of appeals, excluding certain exceptional said writ of error."

and enumerated cases, is limited to cases An entry appears in the transcript of the where the matter in dispute, exclusive of allowance of a writ of error, the filing of a costs, exceeds the sum of $5,000; and such bond conditioned for the prosecution both power to review is to be exerted only in the of the appeal and writ of error, and the same manner and under the same regulatranscript contains citations, as well on the tions as theretofore prevailed before the orwrit of error as on the appeal, signed by the ganization of the court of appeals in cases chief justice of the court of appeals. The of writs of error on judgments or appeals consolidated proceeding, by appeal and writ from decrees rendered in the supreme court of error, is the one which is now here for re- of the District of Columbia. view.

Now, as it is settled by the authorities

previously referred to that the proceeding Messrs. J. J. Darlington and 0. c. in question was legal in its nature, and not Cole for appellant and plaintiff in error. one of equitable cognizance, and as it has

Messrs. Edward H. Thomas and an also been settled that the jurisdiction of drew B. Duvall for appellees and defendants this court prior to the act of 1893, to rein error.

view the final judgments or decrees of the

supreme court of the District of Columbia, Mr. Justice White, after making the did not give power to review by appeal a foregoing statement, delivered the opinion matter not of equitable cognizance (Ormsof the court:

by v. Webb, 134 U. S. 47, 64, 33 L. ed. 805, Assuming that the matters complained of 812, 10 Sup. Ct. Rep. 478), it necessarily are susceptible of review by this court, the follows that we are without jurisdiction to first question is whether our jurisdiction is review the action of the court of appeals of dependent upon the appeal or the writ of the District of Columbia on the appeal here error.

taken, and that appeal must, therefore, be That a proceeding involving the exercise dismissed. of the power of eminent domain is essential

Thus disposing of the appeal, we come to ly but the assertion of a right legal in its consider the case on the writ of error. The nature has been determined. So, also, the errors assigned in the brief of counsel are decisions of this court have settled that a

as follows: condemnation proceeding initiated before a “The court below erred in sustaining the court, conducted under its supervision, with trial court: power to review and set aside the verdict

“Ist. In refusing to set aside the assessof the jury, and with the right of review ment because not supported by the evidence, vested in an appellate tribunal, is, in its and because contrary to the same and the nature, an action at law. Kohl v. United | weight thcreof. States, 91 U, S. 367, 376, 23 L. ed. 449, 452;

“2d. In refusing to instruct the jury that Searl v. School Dist. No. 2, 124 U. S. 197, no assessment could be made against it as 31 L. ed. 415, 8 Sup. Ct. Rep. 460; Chap- a corporation, but only against such of its pell v. United States, 160 U. S. 499, 513, 40 property, if any, as might be benefited. L. ed. 510, 515, 16 Sup. Ct. Rep. 397.

“3d. In refusing to instruct the jury that The proceedings provided for in the act no assessment of benefits could be made of June 6, 1900, being of this character, it against appellant.” is, we think, manifest that the jurisdiction In view of the condition of the record of this court can be exercised only by writ as disclosed by the statement of the case of error.

which we have made, we are of opinion that When both the proceeding by appeal and we cannot pass upon the errors embraced that by writ of error were allowed, the ju- by these assignments. risdiction of this court to review the judg- The inability so to do results from the ments and decrees of the court of appeals fact that there is no bill of exceptions in of the District of Columbia was regulated the record showing that the supreme court by § 233 of the Code of the District of Co- of the District of Columbia was asked to lumbia. 31 Stat. at L. 1227, chap. 854. In and refused to give the alleged instructions effect that section was but a re-enactment upon which the second and third assignments of the then existing provisions of the 8th of error depend, nor does it appear, from section of the act of February 9, 1893 [27 a bill of exceptions or in any other approStat. at L. 436, chap. 74, U. S. Comp. Stat. priate mode, upon what the supreme court 1901, p. 573), which act established the of the District of Columbia acted in concourt of appeals of the District of Columbia. sidering the exception expressly stated to By said section of the Code the power of be based upon the evidence. Not only this, this court to review by writ of error or ap- but there is nothing of record exhibiting the peal the judgments or decrees of said court' fact that any exception was duly taken to the action of the court in overruling the that the court shall give due effect to the objections urged by the railroad company to evidence, and, in case of refusal to comply the confirmation of the verdict of the jury. with such a request, may except to the rul

True it is that the transcript contains ing of the court, if it be one prejudicial to what purport to be certain instructions his rights. Where neither party excepts asked and refused, marked filed by the clerk. to the ruling of the court, either in respect True also is it that there is in the printed to its admissibility or legal effect, the fact transcript a petition and other papers con- that such a deposition or affidavit is exhibcerning the evidence given before the jury, ited in the transcript is not of the slightest to which we have referred in the statement importance in the appellate court, as nothof the case. And it is also true that there ing of the kind can ever constitute the propis in the printed transcript an agreement er foundation for an assignment of error. between counsel, reciting that the court al. Suydam v. Willianson, 20 How. 433, 15 L. lowed the prayer of the petition. But, in ed. 980. the absence of a bill of exceptions, allowed "Inquisitions like the present one bear and authenticated by the judge, these docu- a strong analogy in many respects to the ments form no part of the record in this report or award of referees appointed uncourt, which we have alone the right to der a rule of court, to whom is referred a consider in determining the merits of the pending action. Referees in such cases errors assigned. Young v. Martin, 8 Wall. make their report to the court; and in such 357, 19 L. ed. 419; Baltimore & P. R. Co. a case the report, unlike an award at comv. Sixth Presby. Church, 91 U. S. 127, 23 mon law, must be confirmed before the preL. ed. 260; Clune v. United States, 159 U. vailing party is entitled to the benefit of the S. 593, 40 L. ed. 270, 16 Sup. Ct. Rep. 125; finding of the referees. When the report is Nelson v. Flint, 166 U. S. 276, 279, 41 L. filed in court the losing party may file obed. 1002, 1003, 17 Sup. Ct. Rep. 576.

jections in writing to the confirmation of In Young v. Martin, where entries had the report, and may introduce evidence in been made by the clerk in his minutes, stat support of the objections; and it is welling the filing of a demurrer, argument there- settled law that the ruling of the court in on, and overruling of the demurrer, and overruling such objections is the proper that exception had been taken by plaintiff, subject of a bill of exceptions. York & c. it was held that the exception was not R. Co. v. Myers, 18 How. 250, 15 L. ed. available. The court said (p. 356, L. ed. 382.” p. 419):

In Clune v. United States, in the course “These entries do not present the action of the opinion the court said (159 U. S. of the court and the exceptions in such 593, 40 L. ed. 270, 16 Sup. Ct. Rep. 126): form that we can take any notice of them. “Finally, there is a claim of error in the It is no part of the duty of the clerk to note instructions, but the difficulty with this is in his entries the exceptions taken, or to that they are not legally before us. True, note any other proceedings of counsel, ex- there appears in the transcript that which cept as they are preliminary to, or the basis purports to be a copy of the charge, marked of, the orders or judgment of the court.” by the clerk as filed in his office among the

It may be observed in passing that whilst papers in the case; but it is well settled that it is not now necessary to seal a bill of instructions do not in this way become exceptions (Rev. Stat. § 953, U. S. Comp. part of the record. They must be incorStat. 1901, p. 696), the other requisites re- porated in a bill of exceptions, and thus auferred to are essential.

thenticated by the signature of the judge. In Baltimore & P. R. Co. v. Sixth Presby. This objection is essentially different from Church,-a case similar in character to that that of the lack or the sufficiency of excepunder review,—the court said (pp. 130, 131, tions. An appellate court considers only L. ed. p. 261):

such matters as appear in the record. From “Neither depositions nor affidavits, though time immemorial that has been held to inappearing in the transcript of a common- clude the pleadings, the process, the verdict, law court of errors, can ever be regarded as and the judgment, and such other matters a part of the record unless the same are as, by some statutory or recognized method, embodied in an agreed statement of facts, have been made a part of it.” or are made so by a demurrer to the evi-) That parties, by their affidavits or agreedence, or are exhibited in a bill of excep- ments, cannot cause that to become a bill tions.

of exceptions which is not such in a legal

sense, is settled. Nelson V. Flint, 166 U. “Exceptions may be taken by the opposite S. 276, 279, 41 L. ed. 1002, 1003, 17 Sup. party to the introduction of depositions or ct. Rep. 576; Malony v. Adsit, 175 U. S. affidavits; and the party introducing such 281, 285, 44 L. ed. 163, 165, 20 Sup. Ct. evidence in a subordinate court may insist Rep. 115, and cases cited.

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