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Opinion of the Court.

years, and also for the year 1893 covered by the amended bill; and reference is made to Northern Pacific Railroad v. Walker, 148 U. S. 392, a case somewhat similar to the present, where such a course, it is said, was followed. We do not feel warranted to reverse the decree of the court below on such a view, but as we are constrained to reverse the decree, for reasons presently to be stated, we shall leave it to the court below to exercise its own discretion in the matter of further proceedings of the kind suggested.

Error is assigned to the action of the court decreeing that the complainant should pay the costs, including a fee of upwards of three hundred dollars to the defendants' counsel.

As a general rule, an appeal will not lie in a matter of costs alone. But such appeals have been sustained in particular circumstances, as, for instance, where the costs have been directed to be paid out of a trust fund. In Trustees v. Greenough, 105 U. S. 527, this court said, through Mr. Justice Bradley, that the objection to an appeal on the ground of its being from a decree for costs only, is untenable. However, in the present case, the appeal was not taken from the decree on the sole ground that costs were wrongfully awarded, and, as the entire decree is before us, it is competent for us to consider whether, when a Circuit Court dismisses a suit for want of jurisdiction, it can give a decree for costs, including a fee in the nature of a penalty, to the defendants' counsel.

The revenue law of Louisiana, act 106 of 1890, section 56, provides that the attorney at law who represents the tax collector in injunction proceedings shall, in case of a successful defence, receive a compensation of ten per cent on the amount of taxes and penalties collected as the result of the proceedings, which shall be paid to the said attorney by the party against whom the judgment is rendered, and shall be collected by the tax collector as costs at the same time that the taxes and other penalties are collected. It would seem that the court below applied the provisions of that statute in the present instance.

Without considering or deciding whether it would be the duty of a Federal court to follow the state statute in assessing costs, and particularly in making a payment to an attorney at

Opinion of the Court.

law of a fee proportionate to the amount recovered a part of the decree, we are of opinion that this decree was erroneous in the particular complained of. Having dismissed the bill for want of jurisdiction, the court was without power to decree the payment of costs and penalties.

The Mayor v. Cooper, 6 Wall. 247, 250, was a case where the Circuit Court of the United States had held that it had no jurisdiction of a case, removed to it from a state court, and had sustained a motion to remand for that reason, yet proceeded to give a judgment for the costs of the motion, and ordered that an execution should issue to collect them. This court. said: "The court held that it had no jurisdiction whatever of the case, and yet gave a judgment for the costs of the motion, and ordered that an execution should issue to collect them. This was clearly erroneous. If there were no jurisdiction, there was no power to do anything but to strike the case from the docket. In that view of the subject the matter was as much coram non judice as anything else could be, and the award of costs and execution were consequently void. Such was the necessary result of the conclusions of the court."

In Inglee v. Coolidge, 2 Wheat. 363, it was said by the Chief Justice that this court does not give costs where a cause is dismissed for want of jurisdiction.

In Hornthall v. The Collector, 9 Wall. 560, 566, where the Circuit Court of the United States for the district of Mississippi had dismissed a bill for want of jurisdiction and had awarded costs to the respondents, this court reversed the decree for that reason, and remanded the cause, with directions to dismiss the bill of complaint but without costs. Blacklock v. Small, 96 U. S. 105.

The decree of the court below is reversed and the cause remanded with directions to proceed in conformity with this opinion.

Statement of the Case.

CAROTHERS v. MAYER.

ERROR TO THE SUPREME COURT OF THE STATE OF MONTANA.

No. 144. Submitted November 4, 1896.

Decided November 30, 1896.

In an action of ejectment in a state court by a plaintiff claiming real estate under a patent from the United States for a mining claim, a ruling by the state court that the statute of limitations did not begin to run against the claim until the patent had been issued presents no Federal question. So, too, a ruling that matters alleged as an estoppel having taken place before the time when plaintiffs made their application for a patent, and notice of such application having been given, all adverse claimants were given an opportunity to contest the applicant's right to a patent, and that, the patent having been issued, it was too late to base a defence upon facts existing prior thereto, presents no Federal question.

THIS was an action of ejectment originally brought by the defendants in error, Isaac Mayer and Andrew J. Wilson, in the District Court of the Sixth Judicial District of Montana, in and for the county of Meagher, to recover possession of five lots in the townsite of Neihart. The complaint alleged a seisin in fee on July 22, 1887, and upon the trial plaintiffs introduced in support thereof a patent of the United States for the Keegan lode mining claim, bearing date July 27, 1887, and running to the plaintiffs.

Defendants averred no privity of title under such mining claim or patent, but set up, first, an adverse and exclusive possession of the premises since June 1, 1882; and, second, an equitable defence of estoppel arising from the following state of facts, namely: That in April, 1882, when about fifteen or twenty people were living in that vicinity, a meeting of citizens was held for the purpose of laying out a townsite, the Keegan being then a located mining claim; that at such meeting it was agreed that the surface ground should be devoted to townsite uses; that each citizen should be entitled to enter with the recorder not to exceed two of the lots as laid off, and that each citizen entering lots should fence them; that thereupon at such meeting the said mining claim owners,

Opinion of the Court.

among others the predecessor in interest of plaintiffs, he being at that time the claimant of the Keegan lode, agreed that the surface ground should belong to the town, and gave the same to the citizens for townsite purposes; that such premises were so laid off for town purposes, and the lots were entered in the manner agreed at the meeting with the knowledge and consent of plaintiffs' predecessor in interest.

A general demurrer to this answer having been overruled, plaintiff's replied by a denial of the defences therein set up.

Upon the trial defendants offered to prove an exclusive continuous possession of the premises from 1882 down to the commencement of the action, which offer was rejected by the court, under objection from the plaintiffs that the statute of limitations could not begin to run until the patent for the Keegan mining claim was issued, July 27, 1887, to which ruling the defendants excepted. After making proof in support of the equitable defences so pleaded, the trial court refused all instructions asked by the defendants thereunder, and directed the jury to return a verdict for the plaintiffs.

On appeal the judgment upon such verdict was affirmed by the Supreme Court of Montana, 14 Montana, 274, whereupon defendant sued out this writ, and assigned as error, first, the ruling of the court in excluding evidence of the adverse possession of the defendants and their predecessors in interest prior to the issuance of the patent; and, second, to the action of the court in directing the jury to return a verdict for the plaintiffs.

Mr. E. W. Toole and Mr. William Wallace, Jr., for plaintiff in error.

Mr. A. T. Britton and Mr. A. B. Browne for defendants in

error.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

Upon the facts above stated, the Supreme Court held, first, that the statute of limitations did not begin to run against the

Syllabus.

mining claim until the patent had been issued, following in this particular King v. Thomas, 6 Montana, 409; and, second, that the matters alleged as an estoppel having taken place before the time the plaintiffs made their application for a patent, and notice of such application having been given, that all adverse claimants were given an opportunity of contesting the applicant's right to a patent, and that the patent having been issued, it was too late to base a defence upon facts existing prior thereto, citing in support of its position a prior ruling of the court in Talbott v. King, 6 Montana, 76.

Neither of these defences presents a Federal question. Defendants asserted no right under a Federal statute; made no claim under any Federal patent; claimed solely under a statute of limitations, which the highest court of the State declared did not protect them, and certain matters of alleged estoppel in pais, which the court held to constitute no defence. The writ of error must, therefore, be

Dismissed.

CENTRAL RAILROAD AND BANKING COMPANY

v. WRIGHT.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES
THE SOUTHERN DISTRICT OF GEORGIA.

No. 300. Argued October 22, 1896. Decided November 30, 1896.

FOR

Section eighteen of the act of the legislature of Georgia of December 14, 1835, providing that no municipal or other corporation shall have power to tax the stock of the Central Railroad and Banking Company of Georgia, but may tax any property, real or personal, of said company within the jurisdiction of said corporation in the ratio of taxation of like property, when construed in connection with other legislation on that subject, permits municipal corporations to tax such property within their respective jurisdictions in the ratio of taxation of like property. While, in the absence of any words showing a different intent, an exemption of the stock or capital stock of a corporation may imply, and carry with it, an exemption of the property in which such stock is invested, yet, if the legislature uses language at variance with such intention, the courts,

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