THE DECISIONS

OF THE

Supreme Court of the United States

AT

OCTOBER TERM, 1900.

[1] YAZOO & MISSISSIPPI VALLEY RAIL | 3. ROAD COMPANY, Plffs. in Err.,

v.

WIRT ADAMS.

(See S. C. Reporter's ed. 1-25.)

Error to state court-Federal questionwhen raised-impliedly raised in state court-impairing obligation of contractexemption from taxation-effect of consolidation of corporations.

1.

A Federal question is not set up in a state court soon enough to sustain a writ of error from the Supreme Court of the United States to the state court, when it is not presented until after the case has been decided by the supreme court of the state and remanded to the lower court for new trial,-especially when it is raised by new pleas filed without the leave of court, which the state practice requires.

A new grant of corporate franchises, with in the meaning of Miss. Const. 1890, § 180, making such grants subject to constitutional provisions which require the property of corporations to be taxed like that of individuals, is made by a subsequent consolidation be tween railroad companies which had exemptlons from taxation prior to the adoption of the new Constitution, but which, by articles of consolidation, agree to merge and consolldate their properties, immunities, and privileges, and substitute for their shares, shares in the new company, although there is a clause in the articles providing that the consolidation shall be effected without disturbing the corporate existence of one of the old companies "or the formation of any new dietinct corporation, unless such result shall be necessary to give legal effect to this agreement," where the effect of the consolidation is to surrender the entire administration of the functions of the constituent companies to a new corporation with a new corps of offi[No. 35.]

cers.

ary 7, 1901.

2. A Federal question as to the impairment of the obligation of a contract was sufficiently raised in a state court for the purpose of a Argued October 22, 23, 1900. Decided Januwrit of error from the Supreme Court of the United States, although the contract clause of the Federal Constitution was not discussed, where the case turned upon the existence of such a contract and no question seems to have

been made that, if there had been a contract, it was Impaired by the state legislation.

NOTE.-A8 to Federal jurisdiction over state courts; necessity of Federal question—see notes to Hamblin v. Western Land Co. 37 L. ed. U. 8. 267, and Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998

As to what is a Federal question; when considered see note to Re Buchanan, 39 L. ed. U.

8. 884.

IN ERROR to the Supreme Court of Mis

sissippi to review a decision affirming a judgment for taxes against a railroad company claiming an exemption. Affirmed.

See same case below, 77 Miss. 194, 24 So. 200, 317.

Statement by Mr. Justice Brown:

*This case originated in an action at law [2] begún December 7, 1893, in the circuit court for the first district of Mississippi, by Wirt Adams, revenue agent, suing for the use of the state and of the counties through which the defendant railways pass, against the Yazoo & Mississippi Valley Railroad Company, incorporated under an act of the legislature of Mississippi of February 17, 1882, and also against the Illinois Central Railroad Company, as successors in interest, by consoli

395

Meantime two new actions had been begun in the circuit court for the taxes of 189 and 1897, which were also consolidated with the others.

dation, of a number of other railways, to re- | Mississippi Mills v. Cook, 56 Miss. 40, to the cover taxes assessed by the railroad commis- contrary was overruled. 77 Miss. 305, 24 sion of that state for the year 1892. So. 318. A motion to strike out this "sum-[4] Exhibits annexed to the declaration mary of holdings" was denied November 28, showed that the Yazoo & Mississippi Valley 1898. 77 Miss. 302, 24 So. 317. Railroad Company, as now constituted, was the result of a consolidation made October 24, 1892, between a company of the same name, chartered as above stated, February 17, 1882, and the Louisville, New Orleans, & Texas Railway Company, which latter company was itself formed by a consolidation made August 12, 1884, of the Tennessee Southern Railroad Company, the Memphis & Vicksburg Railroad Company, the New Orleans, Baton Rouge, Vicksburg, & Memphis Railroad Company, and the New Orleans & Mississippi Valley Railroad Company.

On December 27, 1893. a plea was filed by the Illinois Central Railroad Company, de[3]nying certain of the allegations in the declaration; and a separate plea was filed by the Yazoo & Mississippi Valley Railroad Company, claiming in its own favor the benefit of the charter of the Louisville, New Orleans, & Texas Railroad Company exempting such company from the assessment of these taxes by reason of the payment of the same in the construction of its road, and also denying material allegations of the declaration. No Federal question appeared in either of these pleas. A demurrer to these pleas having been overruled, replications were filed.

On December 18, 1894, another action was begun against the same defendants for the taxes of 1893 and 1894, and on January 1, 1896, another for the taxes of 1895. An or der was made consolidating these actions.

On July 4, 1898, the mandate of the su preme court reversing the judgment of the court below was filed in the circuit court. Meantime, however, and on June 27, 1898. defendants filed a petition and bond for a removal of the cause to the circuit court of the United States upon the ground that the case arose under the Constitution and laws of the United States. This petition was also denied July 4, upon the day the mandate was filed.

Thereupon each of the defendants July 6, 1898, filed special pleas to the declaration, setting forth at great length the exemption claimed under the charters of their constituent companies, and alleging that such exemption constituted a contract which had been impaired by the action of the state. Motion was made by the plaintiff to strike out certain of these pleas, viz., the 3d, 4th, 5th, 6th, and 7th, as constituting no defense to the action, which was granted by the court; and all of such pleas, except the 7th, which was withdrawn, were stricken from the files. Whereupon the defendants, “to meet the new aspect put upon the case by the decision of the supreme court herein rendered on June 20, 1898," withdrew "their joint plea filed by them prior to such decision, and all other pleas filed before that decision," and also withdrew the two pleas filed by them respectively at this term (No. 2), and declined to plead further herein. They did not, how

stricken out by the court. A judgment was entered the same day nil dicit against the defendants for the amount sued for in said consolidated case, amounting in all to $548,676.99. The case was again appealed to the supreme court and a new opinion rendered February 20. 1899, reiterating its former views and affirming the judgment of the court below. 77 Miss. 315, 28 So. 956. Whereupon defendants sued out this writ of

error.

The three cases thus consolidated came on for trial before a jury, and resulted in a verdict and judgment July 25, 1896, in favor of the plaintiff for the taxes of 1895, and in fa-ever, withdraw the pleas which had been vor of the defendants for the taxes of 1892, 1893. and 1894. Both parties moved for a new trial, which was denied. Both parties appealed to the supreme court, but neither assigned a ruling upon a Federal question as error. The supreme court reversed the judgment of the court below, and remanded the case for a new trial. 77 Miss. 194, 24 So. 200. The court June 20, 1898, filed a summary of its holdings to the effect, first, that the case of the Natchez, J. & C. R. Co. v. Lambert, 70 Miss. 779, 13 So. 33, which apMessrs. William D. Guthrie and Edparently had been set up as res judicata, was ward Mayes argued the cause, and, with an estoppel only as to taxes for the year Messrs. Noel Gale, James Fentress, and 1. 1892 on property originally belonging to the. Dickinson, filed a brief for plaintiffs in Natchez, Jackson, & Columbus Railroad Company in Adams county, but not upon A contract right of a railroad company to other property, or as to the taxes for other apply taxes levied upon its property during years; second, that the Yazoo & Mississippi a limited period to the payment of its conValley Railroad Company was a new corpo-struction debt can be transferred, and will ration taking its life from the date of the vest in the consolidated company. consolidation, and overruling the Lambert Case to the contrary; third, that the 21st section of the Mobile & Northwestern Railroad Company's charter was an effort to secure an irrepealable grant of exemption, was in violation of the Constitution of 1869, and that it would have been a violation even if it had not been irrepealable, and the case of

error:

Natchez, J. & C. R. Co. v. Lambert, 70 Miss. 779, 13 So. 33; Louisville, N. O. & T. R. Co. v. Taylor, 68 Miss. 361, 8 So. 675: Louisville, N. O. & T. R. Co. v. Blythe, 69 Miss. 939, 16 L. R. A. 251, 11 So. 111.

Upon a consolidation of corporations the contracts, property rights, privileges, and advantages of each of the constituent compa

nies are possessed by the new company to the extent of the road each constituent company has before occupied.

Philadelphia & W. R. Co. v. Maryland, 10 How. 376, 13 L. ed. 461; Tomlinson v. Branch, 15 Wall. 460, 21 L. ed. 189; Tennessee v. Whitworth, 117 U. S. 139, 29 L. ed. 833, 6 Sup. Ct. Rep. 649; Humphrey v. Pegues, 16 Wall. 244, 21 L. ed. 326; Delaware Railroad Tax, 18 Wall. 206, sub nom. Minot v. Philadelphia, W. & B. R. Co. 21 L. ed. 888; Central R. & Bkg. Co. v. Georgia, 92 U. S. 665, 23 L. ed. 757; Branch v. Charl eston, 92 U. S. 677, 23 L. ed. 750; Scotland County v. Thomas, 94 U. S. 682, 24 L. ed. 219; Chesapeake & O. R. Co. v. Virginia, 94 U. S. 718, 24 L. ed. 310; Green County v. Conness, 109 U. S. 104, 27 L. ed. 872, 3 Šup. Ct. Rep. 69; Wabash, St. L. & P. R. Co. v. Ham, 114 U. S. 587, 29 L. ed. 235, 5 Sup. Ct. Rep. 1081.

dated, but only that it may consolidate with any other company upon such terms as may be deemed just and proper, the new company, nevertheless, acquires the right to receive subscriptions belonging to the consolidating company.

Green County v. Conness, 109 U. S. 104, 27 L. ed. 872, 3 Sup. Ct. Rep. 69.

So it has been held in the state courts as to subscriptions.

Musgrove v. Vicksburg & N. R. Co. 50 Miss. 677; Hanna v. Cincinnati & Ft. W. R. Co. 20 Ind. 30; Cantillon v. Dubuque & N. W. R. Co. 78 Iowa, 48, 5 L. R. A. 726, 42 N. W. 613; Chicago, K. & W. R. Co. v. Stafford County Comrs. 36 Kan. 121, 12 Pac. 593; John Hancock Mut. L. Ins. Co. v. Worcester, N. & R. R. Co. 149 Mass. 214, 21 N. E. 364; Day v. Worcester, N. & R. R. Co. 151 Mass. 302, 23 N. E. 824; Swartwout v. Michigan Air Line R. Co. 24 Mich. 389; Mansfield, C. & L. The right to receive taxes voted in aid of M. R. Co. v. Brown, 26 Ohio St. 223; Hama railroad passes by consolidation to the con-ilton v. Clarion, M. & P. R. Co. 144 Pa. 34, solidated company, whether or not the proceedings have resulted in the dissolution of the corporation for whose benefit the appropriation was originally made.

Scott v. Hansheer, 94 Ind. 1; Pittsburgh, C. O. & St. L. R. Co. v. Harden, 137 Ind. 486, 37 N. E. 324.

Lands granted by the government to one of the constituent companies have been held to pass.

Î'arpey v. Deseret Salt Co. 5 Utah; 494, 17

Pac. 631.

Even an apparently personal exemption of employees from military, road, and jury duty has been decided to pass as a privilege to the consolidated company.

Zimmer v. State, 30 Ark. 677.

13 L. R. A. 779, 23 Atl. 53.

In every case in this court where it has been held that the exemption from taxation did not accrue to a consolidated company, there was an intervening constitutional or statutory provision which either forbade a present grant of exemption, or rendered the corporation subject to a general legislative power of amendment or repeal of charters, by which the subsequent imposition of taxes and implied repeal of the exemption could be supported and maintained in its application to the corporation newly created.

Shields v. Ohio, 95 U. S. 319, 24 L. ed. 357; Maine C. R. Co. v. Maine, 96 U. S. 499, 24 L. ed. 836; Atlantic & G. R. Co. v. Georgia, 98 U. S. 359, 25 L. ed. 185; St. Louis, I. So, in the case of statutes authorizing sub- M. & S. R. Co. v. Berry, 113 U. S. 465, 28 L. scriptions by municipalities to the stock of ed. 1055, 5 Sup. Ct. Rep. 529; Keokuk & W. railroad companies, this court has uniformly R. Co. v. Missouri, 152 U. S. 301, 38 L. ed. held that the interest of the corporation in 450, 14 Sup. Ct. Rep. 592; Louisville & N. R. the subscription, and its right to receive and Co. v. Palmes, 109 U. S. 244, 27 L. ed. 922, benefit by it, are not forfeited by, but sur-3 Sup. Ct. Rep. 193; Memphis & L. R. R. Co. vive, a consolidation, and become part of the rights and privileges of the consolidated eompany.

Scotland County v. Thomas, 94 U. S. 682, 24 L. ed. 219; Livingston County v. First Nut. Bank, 128 U. S. 102, 32 L. ed. 359, 9 Sup. Ct. Rep. 18; East Lincoln v. Davenport, 94 U. S. 801, 24 L. ed. 322; Henry County v. Nicolay, 95 U. S. 619, 24 L. ed. 394; Schuyler County v. Thomas, 98 U. S. 169, 25 L. ed. 88; Wilson v. Salamanca, 99 U. S. 499, 25 L. ed. 330; Empire v. Darlington, 101 U. S. 87, 25 L. ed. 878; Menasha v. Hazard, 102 U. S. 81, 26 L. ed. 85; Tipton County v. Rogers Locomotive & Mach. Works, 103 U. S. 523, 26 L. ed. 340; Harter v. Kernochan, 103 U. S. 562, 26 L. ed. 411; New Buffalo v. Cambria Iron Co. 105 U. S. 73, 26 L. ed. 1024; Denison v. Columbus, 62 Fed. Rep. 775, Affirmed in 16 C. C. A. 125, 30 U. S. App. 295, 69 Fed. Rep. 58.

v. Railroad Comrs. 112 U. S. 609, sub nom. Memphis & L. R. R. Co. v. Berry, 28 L. ed. 837, 5 Sup. Ct. Rep. 299; Chesapeake & O. R. Co. v. Miller, 114 U. S. 176, 29 L. ed. 121, 5 Sup. Ct. Rep. 813; Norfolk & W. R. Co. v. Pendleton, 156 U. S. 667, 39 L. ed. 574, 15 Sup. Ct. Rep. 413.

Messrs. William D. Guthrie, Edward Mayes, James Fentress, and Nocl Gale filed a brief for plaintiffs in error in opposition to the motion to dismiss or affirm:

The state court could not have held the plaintiffs in error liable for the taxes in suit without deciding either (1) that the provision of Miss. Laws 1870, chap. 104, § 21, did not constitute a contract, or that that contract had been waived, surrendered, or abrogated; or (2) that the subsequent tax legislation of the state did not impair the obligation of that contract.

Willson v. Black Bird Creek Marsh Co. Where the act authorizing the consolida- 2 Pet. 245, 7 L. ed. 412; Satterlee v. Mattion does not expressly declare that the thewson, 2 Pet. 380, 7 L. ed. 458; Harris v. rights, privileges, and franchises of the con- Dennie., 3 Pet. 292, 7 L. ed 458; Harris v. solidating company shall pass over to the Missouri, 4 Pet. 410, 7 L. ed. 903; Fisher v. company with which it may become consoli- ' Cockerell, 5 Pet. 248, 8 L. ed. 114; Crowell

v. Randell, 10 Pet. 368, 9 L. ed. 458; Arm- | thority exercised under a statute, of any strong v. Athens County Treasurer, 16 Pet: state, is drawn in question on the ground of 281, 10 L. ed. 965; Proprietors of Bridges v. its being repugnant to the Federal ConstituHoboken Land & Improv. Co. 1 Wall. 116, 17 | tion, it is not necessary that the Federal L. ed. 571; Furman v. Nichol, 8 Wall. 44, 19 question be specially set up or claimed, in orL. ed. 370; Edwards v. Elliott, 21 Wall. 532, der to give this court jurisdiction, but it is 22 L. ed. 487; Murray v. Charleston, 96 U. suflicient if it appears that the Federal quesS. 432, 24 L. ed. 760; Smith v. Greenhow, tion is involved in the case, and that the 109 U. S. 669, 27 L. ed. 1080, 3 Sup. Ct. Rep. case could not have been determined without 421; Chapman v. Goodnow, 123 U. S. 540, deciding it. sub nom. Chapman v. Crane, 31 L. ed. 235, 8 Sup. Ct. Rep. 211; Des Moines Nav. & R. Co. v. Iowa Homestead Co. 123 U. S. 552, 31 L. ed. 202, 8 Sup. Ct. Rep. 217; Great Western Teleg. Co. v. Purdy, 162 U. S. 329, 40 L. ed. 986, 16 Sup. Ct. Rep. 810; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 42 L. ed. 878, 18 Sup. Ct. Rep. 488.

This question as to the existence of a contract, as well as its true construction, has been in all cases determined by this court independently of the decisions of the state courts and, in some cases, in direct opposition to the ruling of those tribunals.

Columbia Water Power Co. v. Columbia Electric Street Railway, Light & P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247.

Even were this not a case of the second class, and were it a case within the third class,—that is, involving a right, title, privilege, or immunity under the Constitution.the court would nevertheless hold that the Federal question had been duly raised, and that the right, title, privilege, or immunity had been specially set up or claimed in a proper way and in ample time.

Chicago L. Ins. Co. v. Needles, 113 U. S. 574, 28 L. ed. 1084, 5 Sup. Ct. Rep. 681; Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173; Roby v. Colehour, 146 U. S. 153, 36 L. ed. 922, 13 Sup. Ct. Rep. 47; Powell v. Brunswick County Supers. 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 58, 43 L. ed. 364, 19 Sup. Ct. Rep. 97.

Mcssrs. William D. Guthrie, Edward Mayes, and Noel Gale also filed a supplemental reply brief in behalf of plaintiffs in error:

railroad companies to the protection of the contract clause of the Constitution of the United States.

Ohio Life Ins. & T. Co. v. Debolt, 16 How. 416, 14 L. ed. 997; Jefferson Branch Bank v. Skelly, 1 Black, 436, 17 L. ed. 173; Proprietors of Bridges v. Hoboken Land & Improv. Co. 1 Wall. 116, 17 L. ed. 571; Delmas v. Merchants' Mut. Ins. Co. 14 Wall. 661, 20 L. ed. 757; Memphis & C. R. Co. v. Gaines, 97 U. S. 697, 24 L. ed. 1091; Northwestern University v. Illinois, 99 U. S. 309, 25 L. ed. 387; Wright v. Nagle, 101 U. S. 791, 25 L. ed. 921; Louisville & N. R. Co. v. Palmer, 109 U. S. 244, 27 L. ed. 922, 3 Sup. Ct. Rr 193; Memphis Gaslight Co. v. Shelby County Taxing Dist. 109 U. S. 398, 27 L. ed. 976, 3 Sup. Ct. Rep. 205; Vicksburg, S. & P. R. Co. v. Dennis, 116 U. S. 665, 29 L. ed. 770, 6 The language used in the plea filed in the Sup. Ct. Rep. 625; Given v. Wright, 117 U. state court was sufficient to raise the FedS. 648, sub nom. New Jersey, Given, Prose-eral question, and to entitle the defendant cutor, v. Wright, 29 L. ed. 1021, 6 Sup. Ct. Rep. 907; New Orleans Waterworks Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18, 31 L. ed. 607, 8 Sup. Ct. Rep. 741; Yazoo & M. Val- Green Bay & M. Canal Co. v. Patten Paper ley R. Co. v. Thomas, 132 U. S. 174, 33 L. Co. 172 U. S. 58, 43 L. ed. 364, 19 Sup. Ct. ed. 302, 10 Sup. Ct. Rep. 68; McGahey v. Rep. 97; Columbia Water Power Co. v. CoVirginia, 135 U. S. 662, 34 L. ed. 304, 10lumbia Electric Street Railway, Light & P. Sup. Ct. Rep. 972; Wilmington & W. R. Co. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. v. Alsbrook, 146 U. S. 279, 36 L. ed. 972, 13 Rep. 247. Sup. Ct. Rep. 72; Bryan v. Kentucky Annual Conference M. E. Church, South, Bd. of Edu. 151 U. S. 639, 38 L. ed. 297, 14 Sup. Ct. Rep. 465; Mobile & O. R. Co. v. Tennessee, 153 U. S. 486, 38 L. ed. 793, 14 Sup. Ct. Rep. 968; Shelby County v. Union & Planters' Bank, 161 U. S. 149, 40 L. ed. 650, 16 Sup. Ct. Rep. 558; Phonix F. & M. Ins. Co. v. Tennessee, 161 U. S. 174, 40 L. ed. 660, 16 Sup. Ct. Rep. 471; Douglas v. Kentucky, 168 U. S. 488, 42 L. ed. 553, 18 Sup. Ct. Rep. 199; McCullough v. Virginia, 172 U. S. 102, 43 L. ed. 382, 19 Sup. Ct. Rep. 134; Columbia Water Power Co. v. Columbia Electric Street Railway Light & P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247; Keokuk & W. R. Co. McComb v. Knox County Comrs. 91 U. S. v. Missouri, 152 U. S. 301, 38 L. ed. 450, 141, 23 L. ed. 185; Great Western Teleg. Co. Sup. Ct. Rep. 592. v. Burnham, 162 U. S. 339, 40 L. ed. 991, 16 Sup. Ct. Rep. 850.

Where the validity of a statute, or an au

In addition to the wording of the plea, the certificate of the chief justice of Mississippi shows that the exact constitutional point was raised, considered, and decided.

Roby v. Colchour, 146 U. S. 153, 36 L. ed. 922, 13 Sup. Ct. Rep. 47.

It is submitted that the rule as to res judicata on second trials does not go so far as to prevent the making of new defenses on the new trial, on points which were not decided on the first appeal, particularly in a case where a new trial on the merits is ordered, and the court below is left with ample power to permit parties to make amendments of their pleadings.

Even if the supreme court of Mississippi | 699, 13 Sup. Ct. Rep. 859; Pennsylvania Oo. had decided that it was too late to raise v. Bender, 148 U. Ŝ. 255, 37 L. ed. 441, 13 the Federal question because the decision on Sup. Ct. Rep. 591; Beville v. Cox, 109 N. C. the first appeal constituted res judicata as to 265, 13 S. E. 800; Newburg Petroleum Co. v. that defense, it is doubtful whether such a Wcare, 44 Ohio St. 604, 9 N. E. 845; Mason ruling would prevent a party from securing v. Roll, 130 Ind. 260, 29 N. E. 1135. a review of the case by this court and under the present writ of error, which brings up the whole record.

Panama R. Co. v. Napier Shipping Co. 166 U. S. 280, 41 L. ed. 1004, 17 Sup. Ct. Rep.

572.

Mr. R. C. Beckett argued the cause, and, with Mr. Frank A. Critz, filed a brief for defendant in error:

It is only the rulings and judgment on the last appeal from which the writ of error is sued out, and it is the settled doctrine of this court, and of all other courts proceeding according to the course of common law, that what has been decided and settled in one appeal is res judicata, and not open to review on a second or any subsequent appeal.

Union Mut. L. Ins. Co. v. Kirchoff, 169 U. S. 103, 42 L. ed. 677, 18 Sup. Ct. Rep. 260; Thompson v. Maxwell Land Grant & R. Co. 168 U. S. 451, 42 L. ed. 539, 18 Sup. Ct. Rep. 121; Great Western Teleg. Co. v. Burnham, 162 U. S. 343, 40 L. ed. 993, 16 Sup. Ct. Rep. 850; Wayne County Supers. v. Kennicott, 94 U. S. 498, 24 L. ed. 260; Stewart v. Stebbins, 30 Miss. 66; Smith v. Elder, 14 Smedes & M. 100; McKinney v. State ex rel. Nixon, 117 Ind. 27, 19 N. E. 613; Agne v. Seit singer, 104 Iowa, 485, 73 N. W. 1048; Long v. Perine, 44 W. Va. 243, 28 S. E. 701; 2 Enc. Pl. & Pr. pp. 373-380, and notes.

This court has no more extended jurisdiction than the supreme court of the state, for it is the action of the state supreme court only that this court is called on to review.

May, U. S. Sup. Ct. Prac. pp. 91, 92; Chemical Nat. Bank v. City Bank, 160 U. S. 646, 40 L. ed. 568, 16 Sup. Ct. Rep. 417; Miller v. Texas, 153 U. S. 538, 38 L. ed. 813, 14 Sup. Ct. Rep. 874.

If the Federal questions were really suffi ciently raised under the pleadings as they stood, they are not raised now, for all those pleadings have been voluntarily withdrawn, and it is too late to raise them by any new pleadings.

Union Mut. L. Ins. Co. v. Kirchoff, 169 U. S. 103, 42 L. ed. 677, 18 Sup. Ct. Rep. 260; Miller v. Cornwall R. Co. 168 U. S. 133, 42 L. ed. 410, 18 Sup. Ct. Rep. 34; Northern P. R. Co. v. Eliis, 144 U. S. 458, 36 L. ed. 504, 12 Sup. Ct. Rep. 724; Citizens' Sav. Bank v. Owensboro, 173 U. S. 643, 43 L. ed. 843, 19 Sup. Ct. Rep. 530.

If the pleas had been stricken out because they presented no defense to this action, we would still claim that no Federal question was raised; and, even if there was, there were so many non-Federal reasons for the court's action, even on the merits, that this court could not say that a Federal question was necessarily involved, and that is requisite to give it jurisdiction.

Iowa C. R. Co. v. Iowa, 160 U. S. 393, 40 L. ed. 469, 16 Sup. Ct. Rep. 344.

even at

When a party desires to file pleadings out of time, it is necessary to make some excuse for the delay,-which was not tempted here, and also to present the pleadings with the application, or at least before they are filed, so that the court can judge whether they are to be filed for delay only, or whether on their face they present evidences of good faith and fairly amount to a prima facie defense.

Hunt v. Walker, 40 Miss. 590; 18 Am. & Eng. Enc. Law, 1st ed. p. 505 and note 5.

This class of tax cases comes under the third class of § 709 of the Revised Statutes, where the "immunity" must be specially set The supreme court of Mississippi has de-up and claimed, and it was never done or cided that under its rules of practice and thought of in this case till the suggestion of procedure these pleas were properly stricken errors. out, and that is conclusive on this court, and raises no Federal question. It matters not whether its decision was right or wrong. Stevens v. Nichols, 157 U. S. 370, sub nom. Carr v. Nichols, 39 L. ed. 736, 15 Sup. Ct. Rep. 640; Chemical Nat. Bank v. City Bank, 160 U. S. 653, 40 L. ed. 570, 16 Sup. Ct. Rep.

Stevens v. Nichols, 157 U. S. 370, sub nom. Carr v. Nichols, 39 L. ed. 736, 15 Sup. Ct. Rep. 640. To the same effect are: Iowa C. R. Co. v. Iowa, 160 U. S. 393, 40 L. ed. 469, 16 Sup. Ct. Rep. 344; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 688, 41 L.. ed. 1166, 17 Sup. Ct. Rep. 718; Mexican C. R. Co v. Pinkney, 149 U. S. 194, 37 L. ed.

Louisville & N. R. Co. v. Louisville, 166 U. S. 714, 41 L. ed. 1175, 17 Sup. Ct. Rep. 725. See also May, U. S. Sup. Ct. Prac. pp. 99,

100.

Mr. R. C. Beckett also filed a separate brief in support of the motion to dismiss or affirm:

No Federal question was at any time raised until after the decision in the supreme court, and then for the first time in the suggestion of errors.

Miller v. Cornwall R. Co. 168 U. S. 133, 42 L. ed. 410, 18 Sup. Ct. Rep. 34; Pim v. St. Louis, 165 U. S. 273, 41 L. ed. 714, 17 Sup. Ct. Rep. 322; Sayward v. Denny, 158. U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Morrison v. Watson, 154 U. S. 111, 38 L. ed. 927, 14 Sup. Ct. Rep. 995; Miller v. Texas, 153 U. S. 535, 38 L. ed. 812, 14 Sup. Ct. Rep. 874; Loeber v. Schroeder, 149 Ü. S. 580, 37 L. ed. 856, 13 Sup. Ct. Rep. 934; Bushnell v. Crooke Min. & Smelting_Co. 148 U. S. 682, 37 L. ed. 610, 13 Sup. Ct. Rep.