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Opinion of the Court.

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United States had adopted, as the qualifications of electors for members of Congress, those prescribed by the State for electors of the most numerous branch of the legislature of the State.

It results from what has just been said that the court erred in dismissing the action for want of jurisdiction, since the right which it was claimed had been unlawfully invaded was one in the very nature of things arising under the Constitution and laws of the United States, and that this inhered in the very substance of the claim. It is obvious from an inspection of the certificate that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. But as the very nature of the controversy was Federal, and, therefore, jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States.

True, it has been repeatedly held that, on error from a state court to this court, where the Federal question asserted to be contained in the record is manifestly lacking all color of merit, the writ of error should be dismissed. New Orleans Waterworks Co. v. Louisiana, ante, 336, and authorities cited. This doctrine, however, relates to questions arising on writs of error from state courts where, aside from the Federal status of the parties to the action or the inherent nature of the Federal right which is sought to be vindicated, jurisdiction is to be determined by ascertaining whether the record raises a bona fide Federal question. In that class of cases not only this court may, but it is its duty to, determine whether in truth and in fact a real Federal question arises on the record. And it is true, also, as observed in New Orleans Waterworks Co. v. Louisiana, supra, that a similar principle is applied in analogous cases originally brought in a court of the United States. McCain v. Des Moines, 174 U. S. 168; St. Joseph & Grand Island Railroad v. Steele, 167 U. S. 659. But the doctrine referred to has no application to a case brought in a Federal court where the

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Opinion of the Court.

very subject matter of the controversy is Federal, however much wanting in merit may be the averments which it is claimed establish the violation of the Federal right. The distinction between the cases referred to and the one at bar is that which must necessarily exist between controversies concerning rights which are created by the Constitution or laws of the United States, and which consequently are in their essence Federal and controversies concerning rights not conferred by the Constitution or laws of the United States, the contention respecting which may or may not involve a Federal question depending upon what is the real issue to be decided or the substantiality of the averments as to the existence of the rights which it is claimed are Federal in character. The distinction finds apt illustration in the decisions of this court holding that suits brought by or against corporations chartered by acts of Congress are cases per se of Federal cognizance. Osborn v. U.S. Bank, 9 Wheat. 817; Texas & Pacific R. R. v. Cody, 166 U. S. 606. It may not be doubted that if an action be brought in a Circuit Court of the United States by such a corporation, there would be jurisdiction to entertain it, although the averments set out to establish the wrong complained of or the defence interposed were unsubstantial in character. The distinction is also well illustrated by the case of Huntington v. Laidley, 176 U. S. 668, where, finding that jurisdiction obtained in a Circuit Court, this court held that it was error to dismiss the action for want of jurisdiction because it was deemed that the record established that the cause of action asserted was not well founded.

It follows that the court below erred in dismissing the action for want of jurisdiction. Of course, in reaching this conclusion we must not be understood as expressing any opinion as to the sufficiency of the declaration. The judgment of the Circuit Court is reversed and the action

is remanded for further proceedings, in conformity with this opinion; and it is so ordered.

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Opinion of the Court.

UNITED STATES v. COPPER QUEEN MINING COM

PANY.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF ARIZONA.

No. 218. Argued April 11, 14, 1902.-Decided May 19, 1902.

In this case there is nothing whatever in the bill of exceptions to show

that the evidence contained therein is all the evidence that was given on the trial, and the court cannot presume, for the purpose of reversing the judgment, that there was no evidence given upon which the jury might rightfully have found the verdict which they did.

The case is stated in the opinion of the court.

Mr. Marsden C. Burch for the United States.

Mr. William Herring and Mr. John C. Chaney for defendant in error.

MR. JUSTICE PECKHAM delivered the opinion of the court.

The government has brought this case here by writ of error for the purpose of reviewing a judgment of the Supreme Court of Arizona, affirming a judgment entered upon the verdict of a jury in favor of the defendant. The action was to recover $183,000, being the alleged value of about 5,900,000 feet of timber, said to have been wrongfully cut and taken by the defendant from the surveyed and unsurveyed public lands of the United States in a cañon in the Chiricahua Mountains, sixty miles from the town of Wilcox on the Southern Pacific Railroad Company, in the Territory of Arizona.

The answer joined issue upon the allegations of the complaint, and also set up that the timber was cut by one Ross from public mineral lands of the plaintiff, and was so cut and removed from those lands under the authority of the act of Congress of June 3, 1878, 20 Stat. 88, the material portion of which reads as follows:

“ Tbat all citizens of the United States and other persons, bona fide residents of the State of Colorado, or Nevada, or either

Opinion of the Court.

of the Territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby, authorized and permitted to fell and remove, for building, agriculture, mining or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry, in either of said States, Territories, or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes : Provided, The provisions of this act shall not extend to railroad corporations.”

The answer further set up that Ross had good right and law. ful authority to cut and remove the timber, and that it was cut and removed from such lands in good faith, and at the time that he so cut and removed the timber Ross was a citizen of the United States of America and a bona fide resident of the Terri. tory of Arizona.

A trial was had in the District Court before a judge and jury, and upon the close of the evidence counsel for the government made a motion that the court instruct the jury to find on the evidence a verdict for the government, which was refused and an exception taken.

Among other things the court charged the jury as follows:

“It is also incumbent upon the defendant, in order to avail itself of the permission granted by said act of June 3, 1878, and in order to justify its purchase and consumption of said timber, to show by a preponderance of the evidence that Daniel D. Ross, at the time of the cutting and removal of said timber from the lands of the plaintiff, was a citizen of the United States and was a bona fide resident of the Territory of Arizona. And should the evidence in this case fail to establish that, at the time of the cutting and removal of said timber, the said Daniel D. Ross was a citizen of the United States, and a bona file resident of the Territory of Arizona, you must find for the plaintiff, without regard to the mineral or non-mineral character of the land.”

Opinion of the Court.

The jury found a verdict for the defendant, after which a motion for a new trial was made and denied by the trial judge. An appeal from the judgment entered upon the verdict was then taken to the Supreme Court of the Territory, where it was affirmed.

It thus appears that the judge held, and so charged the jury, that Ross, who did the cutting, must have been not only a bona fide resident of the Territory, but also a citizen of the United States, and if he were not, then the plaintiff was entitled to a verdict. The Government now says there was no evidence in the case that Ross was a citizen of the United States, nor any tending to show he was a bona fide resident of Arizona at the time the cutting was done, and that unless Ross were such citizen and also a bona fide resident of the Territory, his cutting of the timber was wrongful and the Government was entitled to a verdict. The verdict must be regarded as a finding that

a . Ross was a citizen of the United States and a bona fide resident of the Territory when the cutting was done. If he were, there is no question made about his right to cut. The motion on the part of the Government at the close of the evidence to direct a verdict for the Government upon all the evidence, and the exception to the refusal of the court so to do, would raise the question whether there was any evidence of the citizenship of Ross and of his residence in the Territory when the cutting was done, upon which to base a verdict, were it not that the bill of exceptions lacks an essential statement for that purpose.

It does not appear from the bill that it contains all the evidence given upon the trial. It may be that it does, but we cannot, in the absence of any statement in the bill to that effect, presume it does for the purpose of reversing the judgment herein, upon the assumption that the proper construction of the act of Congress requires such citizenship as well as residence. When this court is asked to reverse a judgment entered upon a verdict of a jury, upon a writ of error, upon the ground that there is absolutely no evidence to sustain it, and the court should have directed a verdict, the bill of exceptions must embody a statement or there must be a stipulation of counsel declaring that the bill contains all the evidence given upon the trial so that the

VOL. CLXXXV-32

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