Opinion of the Court.

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in Grinnell v. Railroad Co., 103 U. S. 739; Van Wyck v. Knevals, 106 U. S. 360, and St. Louis &c. Ry. Co. v. McGee, 115 U. S. 469.

In New York Indians v. United States, 170 U. S. 1, this court, after referring to Schulenberg v. Harriman, 21 Wall. 44, said:

"It has always been held that these were grants in præsenti, although the lands could not be identified until the map of definite location of the road was filed, when the title which was previously imperfect acquired precision and became attached to the land. The doctrine of this case has been affirmed so many times that the question is no longer open to argument here."

In Bybee v. Oregon &c. Railroad Co., 139 U. S. 663, the grant provided that not only the lands should revert to the United States for failure to perform the conditions, but the grant itself should be null and void for noncompliance with the conditions. It was nevertheless held that the conditions were subsequent, and the title could not be forfeited except upon proper proceedings by the Government, judicial in their character, or an act of Congress competent for that purpose.

Applying the principles of those cases to the grant in question, we find that in its terms the granting clause is clear and distinct and conveys an estate in præsenti. There is nothing in the conditions inconsistent with the vesting of the title, or requiring things to be done before the title can be vested. The company is required to commence grading its located line within six months and the grant is to be forfeited, unless at least twenty-five miles shall be constructed within two years after the passage of the act. These things may be done after the vesting of the title, and do not necessarily precede the vesting of the estate.

Reading this grant in the light of the former adjudications of this court, we think it must be held that it was

the intention of Congress that the grantee should perform these conditions after acquiring title and taking possession, and therefore that the conditions were subsequent. This being true, there could be no forfeiture on the part of the United States without some appropriate judicial or legislative action, which it is not claimed was taken in this case. We think the Supreme Court of the State of Washington was right in its construction of the grant under the circumstances shown.

The contention that the grant was abandoned by the grantee, or that the circumstances show estoppel to make claim under it, do not present questions reviewable here. The state court having, in our view, properly decided the Federal question made, upon which this court alone could take jurisdiction, its judgment must be

Affirmed.

FORE RIVER SHIPBUILDING COMPANY v. HAGG.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

No. 75. Submitted December 16, 1910.-Decided January 3, 1911.

This court takes notice of, and inquires as to, its own jurisdiction, whether the question is raised by counsel or not. Mansfield &c. Ry. Co. v. Swan, 111 U. S. 379.

Section 5 of the Court of Appeals Act of March 3, 1891, c. 577, 26 Stat. 826, gives a direct review of the judgment of the Circuit Court as to its jurisdiction, not upon general grounds of law or procedure but of the jurisdiction of the court as a Federal court. Louisville Trust Co. v. Knott, 191 U. S. 275; Bache v. Hunt, 193 U. S. 523. Where jurisdiction by diversity of citizenship exists, the question of whether the Circuit Court has jurisdiction to enforce the decree of another sovereignty is a question of general law and not a question peculiar to the jurisdiction of the Federal court as such, and a direct appeal will not lie to this court from the judgment of the Circuit Court.

THE facts, which involve the jurisdiction of this court of a direct appeal under § 5 of the Circuit Court of Appeals Act of 1891, are stated in the opinion.

Mr. John Lowell and Mr. James A. Lowell for plaintiff in error.

Mr. Asa P. French and Mr. James S. Allen, Jr., for defendant in error.

MR. JUSTICE DAY delivered the opinion of the court.

This case is here upon a question involving the jurisdiction of the Circuit Court of the United States for the District of Massachusetts to entertain the action. It was begun in the Circuit Court by Selma T. Hagg, a citizen of Sweden, against the Fore River Shipbuilding Company, a corporation of the Commonwealth of Massachusetts. The object of the suit was to recover damages under the Employers' Liability Act of Massachusetts (Revised Laws, chap. 106, § 73), and was for the death, without conscious suffering, of her husband, Charles A. Hagg, an employé of the defendant company, resulting from an injury received in the defendant's forge shop in Quincy, Massachusetts. The action resulted in a verdict and judgment for the plaintiff below. The defendant below moved the court to dismiss the action on the ground that it was without jurisdiction, for the reason that the Massachusetts statute was of a penal character, and therefore an action upon it could be maintained only in the courts of Massachusetts. The case comes here upon certificate of the judge of the Circuit Court, and the question stated is, "whether or not the statute under which the plaintiff's action was brought was of such a penal character that the Circuit Court did not have jurisdiction of said action."

In behalf of the defendant company, now plaintiff in error, it is contended that a penal action of this character

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Opinion of the Court.

can be brought only in the courts of Massachusetts, and it is insisted that such is the rule applicable to cases of this character as between separate and distinct sovereignties. It is argued that the act under which the suit was brought is a penal statute, and it is insisted that the wrong done is primarily an offense against the public, and the relief sought not of the class of actions remedial in their nature, wherein recovery is given in the form of compensation to the widow or children of the deceased, which actions have been sustained in the courts of States other than those enacting the statute.

The question presented, therefore is, whether owing to the character of the Massachusetts act, the courts of another sovereignty will enforce its provisions, or whether the sole remedy is under the laws of the Commonwealth enacting the statute.

This court takes notice of its own jurisdiction, and whether the question is raised by the counsel or not, inquires of its own motion whether there is jurisdiction to entertain any given case before it. Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U. S. 379–382. In that case Mr. Justice Matthews, who spoke for the court, said:

"On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it."

We shall then inquire, Has this court jurisdiction to entertain this attempt at a direct review of the Circuit Court's judgment certified here upon the question of jurisdiction? By the Court of Appeals Act of March 3, 1891 (c. 517, 26 Stat. 826), a writ of error may be taken directly from a Circuit Court to this court in certain cases, among which is "any case in which the jurisdiction of VOL. CCXIX-12

the court is in issue;" and it is further provided: "In such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision." The question then is, Does this case involve a question of jurisdiction reviewable in the manner sought in this case by writ of error to the Circuit Court?

The court has had frequent occasion to determine what is meant in the statute providing for review of cases in which the jurisdiction of the court is in issue, and it has been held that the statute means to give a review, not of the jurisdiction of the court upon general grounds of law or procedure, but of the jurisdiction of the court as a Federal court.

A leading case on this subject, and one frequently cited with approval since its decision, is Louisville Trust Company v. Knott, 191 U. S. 225. In that case a state court had taken jurisdiction of an action in equity in which a receiver was asked for and none had been appointed at the time when another suit was begun in the Circuit Court of the United States and a receiver appointed therein. Thereafter the state court which had first taken jurisdiction appointed a receiver, and upon its direction that receiver intervened in the Federal court and asked to have the property turned over to him. The Circuit Court of the United States maintained its own jurisdiction, and refused to give the property to the state receiver. The case came to this court upon certificate of a question involving the jurisdiction of the Circuit Court of the United States. This court dismissed the writ of error for want of jurisdiction, holding that the question presented was one of the equity jurisdiction of one court as against the like jurisdiction in another court, and did not present a distinctive question as to the jurisdiction of the Federal court as such. The former cases were reviewed, and Mr. Justice Harlan, who spoke for the court, said:

"The question of jurisdiction which the statute permits