HAMILTON V. BROWN.

753

either the corporate property in the capital stock, or the individual property in the shares, and that the supreme court of the state and the United States have disagreed on this point; but, in my judg· ment, whether it be one or the other, the exemption which is given by the words, "which shall be in lieu of all other taxes," is a protection of both the corporate property and the individual property in the capital stock and its shares, but that neither court has de dded this point explicitly since the supreme court of the United States determined it to be a tax on the individual property of the shareholder, although the supreme court of the state has recognhed this full scope of the exemption since that time. The same ruling we have just now made a,pplies to the privilege tax as well as to that upon the capital stock, and for the same reason. The bank has largely increased, by authority of law, its capital stock since the original charter, and there is another contention 1hat, since the cons.titution of 1870 forbids these special privileges, the exemption must be limited to the amount of the old stock, and cannot include the new. It is manifest, in the view we have taken, that unless the charter restricts the power to increase either by fixing it definitely or by words that forbid any further additions to the capital stock, the charter itself would confer the right of increase. This charter has no limitation as to that right, and the privilege is undeniable, perhaps, under the charter. But the words of the exemption are broad, and what we have said of its universalitr includes any authorized increase of capital stock as well as the rest. The charter has not a word to indicate any such restriction of the exemption, nor anything from which it may be implied, and it seems to me that the constitution cannot affect its force any than the statute could. If the constitution had expressly ordained that the exemption of the bank should be limited to the amount of the orif:,rinal sublmription, or to that which existed when the constitution was passed, unless the charter itself had contained some restriction of the amount of capital stock authorized, it would have been invalid as impairing the ol"ation of the contract if the right of increase be a charter privilege, u" we hold it to be. Demurrer sustained, and bill dismissed. So ordered.

HAMILTON et aI. v. BROWN et at (Circuit COl1rt of AplJcals, Fifth Cireuit. Ko.73. January 9, 1893.)

1.

WRIT OF ERROR FROM CIRCUIT COURT OF ApPEALs-TIME OF TAKING.

A writ of error from the circuit court of appeals to a circuit court must be dismissed, unless sued out within six months from the entry of the judgment sought to be reviewed, as required by section 11 of the judiciary act of March 3, 1891.

2.

CIRCUIT OOURT OF ApPEALS-JURISDICTION-CONSTITUTIONAL QUESTION.

Under sections 5 and 6 of the judiciary. act of March 3, 1891, the circuit court of appeals has no jurisdiction to review a decision which involves

v.53F.no.8-48

754

FEDERAL REPORTER,

vol. 53.

'the construction or application of the constitution of the United States, or which a state law is claimed to be in contravention thereof.

fuError to the Circuit Court of the United States for the Western District of Texas. At Law. Action of trespass to try title, brought by J. F. Hamilton and others against J. G. Brown and numerous other parties, to recover a league of land in Fayette county, Tex. To a plea of estoppel filed by defendants, a general demurrer and two special exceptions were overruled by the circuit court; and, plaintiffs having elected to stand on their demurrer and exceptions, judgment was thereupon entered. for. defendants.. Plaintiffs bring error. Dismissed for want of jurisdiction. Statement by PARDEE, Circuit Judge:
'l'h1sactlon was instituted in the United States cirt'Ult court for the western district ot Texas, Austin divlBon, by the plaintiffs in er.ror, to recover a league of landsj.tuated in Fayette county, Tex., originally granted to Walter Hamilton b;Y the repUblic of Mexico on April 89, I8H1. The action was brought in the otCijDary form of trespass to try Litle,as prescribed by the laws of Texas. The defendants answered by a general demurrer, plea of not guilty, and special pleas.· It will be unnecessary, however, to set out at length these various pleas, inasmuch as on the final disposition of the case the issues raised by them were not passed on by the court. The only matters for the· decision of this court are embraced in a supplemental answer, in the nature of plea of estoppel, relied on by the defendants. ' In substance, in this plea, defendants allege that Edward Colier, the district attorney, acting under authority of the state of Texas, begun, in the name of the state, in the district court of FaYette county, a suit, whose object and purpose was to have said court adjudge that the Hamilton league had ascheated to the state of Texas, and to have the title to said league divested out of Walter Hamilton and bis heirs, and have it vested in the state of 'rexas. The petition in that case alleged that Walter IIamilton, late a resi· dent of Fayette county, died on - - day of - - , A. D. - - , intestate, and without heirs, and that no letters ot administration had ever been granted upon said Hamilton's estate in Fayette county, in which county the succession, according to law, should have been opened, and that decedent died the owner of tlle league of land involved in this suit. That there are no tenants upon said tract of land, and no person in actual or constructive possession of any portion of. the land, nor is .there any person claiming the estate in and to the same, or paying taxes thereon, and that the estate in said land has escheated to the state of Texas; and there is a prayer for writ of possession. That afterwards, on MaylS, 1861, the district court of Fayette county ent{'red up an order of publication in said sldt,· commandtug the publication for four succeRsivc, weeks, in a newspaper printed in the state of Texas, settlnJ; forth the substance of the allegatiollS of said petition, requiring all persons interested in the estate of Walter Hamilton to appear and show cause wily the said l(,ague of land should not be vested in the state of Texas, and that pursuant to said order a notice was regularly issued and published fOl" the required time in a newspaper called the "La Grange New Era." That sundry persons intervened in said suit, and set up claims to parts of said league. 'That said suit was continued from term to term until July term, 1871, when there was a trial had, and judgment entered to the effect "that the Hamilton leaglle is escheated to the state of Texas; that the title. thereto is divestecl out of Walter Hamilton and his heirs, and forever vested in the state of 'rexas." That said judgment has never been reversed or vacated, but remains in full force, and that, because of said judgment, Walter Hamilton, and aU persons claiming through or under him, are estopped from and barred of the right to have or malntain this lwtion for the recovery of said land. Ia this plea defendants further aileged that on August 7, 1872, pursuant to said jUdgment, an order of sale issued to the sheriff of Fayette county,

HAMILTON ,. BROWN.

166

eommnndfng blm to seize &nd sell said land for cash, as under execution, without appraisement, as the law directs, in lots of not leBS than ten nor more than forty acres, and turn over the proceeds of the sale, after deducting costs, to the comptroller of public accounts for the state of Texas. That said land was sold by said Sheriff, and that these defendants, and those under whom tlley claim, became the purchasers of parts of said league claimed by them, paid for same, ax.d received from the sheriff deeds conveying same, and that for this reason, also, plaintiffs are estopped from claiming said land, or any part thereof. To this plea is attached, as an exhibit, the judgment. To this plea of estoppel the plaintiffs in error urged a general demurrer, and by two special exceptions claimed that the matter's therein contained in nowise affected their title, because: (1) The esclleat proceedings and final judgment obtained therein were begun and Ilrosecuted under an act of the legislature of the state of Texas, entitled "An act to provide for vesting in the state escheated property," passed Marcll 20, 1848,-there being at the date of the filing of said escheat proceedIngs no other law or statute authorizing esclleats,-and that this act was repealed and annulled by the constitution of Texas of 1869, prior to the date when the escheat judgment pleaded and relied upon by defendants to defeat plaintiffs' title was obtained, in this: the law of March, 1848, § 11, provides that the sheri1f of the proper county shall seize the real estate escheated to the state, and sell the same in the manner therein provided, while the constitution of 1869, art. 4, § 20, prescribes a different mode, viz. that the comptroller of the state "shall take charge of all escheated property, keep an accurate account of all moneys paid into the treasury, and of all lands escheated to the state," wllich provisions are contradictory and conflicting. (2) That if the act of 1M8 was not repealed and annulled, entirely, then said section 11 thereof, (pasch. Dig. art. 3667,) wllich reads as follows: "A writ sllall be iBSued to the sheriff of the proper county, commanding him to seize such estate vested in the state; and, if the same be personal property or real estate, he sllall dispose thereof at public auction, in a manner provided by law for the sale of property under execution,"-was by the constitution of 1869, art. 4, § 20, wllich provides that the comptroller of the state "shall take cliarge of all escheated property, keep an accurate account of all moneys paid into the treasury, and of all lands esclleated to the state," repealed and annulled; and there being no other provisions in said act by which compensation is made to the heirs of the intestate, whose property has been sought to be esclleated, the balance of sald act is not self-acting, and is one of confisca,tion, being in violation of the fiftll amendment of the constitution of the United States, and of section 14 of the bill of rights of the Texas constitution of 1869, in force at the time the judgment was rendered. March 30, 1891, the court below overruled these exceptions, and to this action of the court 'plaintlffs reserved a bill. On July 6, 1891, plaintlfJ's in error, by a pleading termed in the Texas practice a ''first amended second supplemental petition," renewed thek former objections to the plea of estoppel, and, in addition, urged that if the a"t of March 20, 1848, (Escheat Act,) was not wholly repealed by the constitution of 1869, that said act, and especially section 11 thereof, was repealed by sald constitution of 1869, which alone provides for compensation to the heirs owning the escheated l.roperty, and is in violation of section 10, art. 1, of the constitution of the United States, wllich, am,)ng other things, provides that no state shall impair the obligation of contracts, and that said law impairs the obligation of the contract between the state of '.rexas and Walter Hamilton and his heirs, by virtue of the grant under which they hold the land, and seeks to forfeit and confiscate the property of said Hamilton by appropriating it to the common 1'und without making due compensation therefor. These grounds for demurrers and special exception were by the court below overruled, and bill of exceptions again reserved. When the case was regularly called, the plainti1'l's in error, through counsel. declined to introduce any evidence, declaring that they desired to stand on their demurrer and exceptions to defendants' answer, as amended, whereupon judgment was rendered on July 18, 1891, in favor of defendants in error.

FEDERAL REPORTER,

vol. 53.

and to which judgment plaintitrs in error dmy excepted. Afterwards, on February 12, 1892, tbis judgment was made final. Tbis judgment plaintiffs in error, by proper proceedings, seek now to have reviewed by tbis court. Assignments of :l1]rror. "First. That said circuit court erred in overrIDing plaintiffs' first amended second supplemental petition, filed July 6, 1891, which supplemental petition presented a general demurrer and special exceptions to the sufficiency of the defendants' supplemental answer, filed March 30, 1891, as fully appears by plaintiffs' bill of exceptions, approved and filed July 18, 1891, and a part of the record of tbis cause. "Second. The circuit court erred in holding that the escheat proceeding set out in defendants' first supplemental answer, wherein it was averred that the title to the land in controversy in tbis suit has been divested out of Walter Hamilton, under whom plaintiffs claim as heirs, barred these plaintitrs of any further interest in said lands, and especially that said escheat proceedings were sufficient to show an outstanding title against plaintiffs, so as to prevent their recovering in tbis action. "Third. The circuit court erred in not holding that the escheat proceedings and final judgment obtained therein, as set out in the defendants' first supplemental. an.o:;wer, were withflu't the warrant and authority of any law in force in the state of 'rexas at the time said proceedings. and judgment were had, the fact beirig that there was no law in Texas in force at the time by which real property comd be escheated. "Irourth. The Circuit court erred in not holdingJ;1lat the act of March 20, 1848, of the legislature of the state of 'l.'exas, under which the escheat proceedings and judgment relied upon by defendants to bar plaintiffs' action were begun and prosecuted, had not been repealed and annulled by the con· stitution of the state of 'rexas, which went into effect in July, 1869, and especially ih not holding that said act of March 20,1848, was a nullity, in this: that said law Of., 1848, § 11, provides that the sheriff of the proper cOlmtr shall seize /lnd sell the real estate escheated to the state, and sell the same in the manner therein provided; while the constitution of 1869, art. 4, § 20, pro,'ides that the comptroller of the state. 'sh:1l1 take charge of all cscheate(l property, keep an acCurate account of all moneys paid into the treab'Ury, alit! of all the land escheated to the state,'-which provisions are contradictory and confiicting. "Fifth. Sai.d circuit court erred in not holding that section 11 of said act of March 20, 1848, (pasch. Dig. art. 3667,) which reads as follows: 'A writ shall be issued to the sheriff of the proper county commanding him to seize sueh estate vested in the state; and, if the same be personal property or real estate, he shall dispose thereof at public auetion, in the' .manner pro"l1ded by law for sale of property under execution,'-was by said constitution of 1869, art. 4, § 20, (which provides that the comptroller of the state 'shall take charge of all escheated property, keep an aecurate account of all moneys paid into the treas11ry and all lands escheated to the state,') repealed and annulled; and, there no other provision in said act by which ,compensation is made to the heirs of an intestate whose property has been escheated, the balance of .said act is not self-acting, and is one of confiscation, and therefore in violation of the fifth amendment of the constitution of the United States, and section 14 of the bill of rights of the constitution of 1869 of the state of 'rexas. ' "Sixth. Said circuit court erred in not holding that the act of Mareh 20, 1848, under Which said escheat preceedings and judgment relied on in said supplemental answer of defendants were not in coptravention and violation of seetion 10, article 1, of the eonstitution of the United States, which provides that 'no state shall pass any law * * * impairing the obligations of contracts,' in this: that saij law impairs the obligation of the contract between the state of Texas and Walter Hamilton and. Ws heirs, by virtue of the grant under wbich they hold said land, and seeks to forfeit or confiscate the private property of said Hamilton and bis heirs, by appropriating it to the common fund, without making due compensation therefor. * * *"

HAMILTON t7. BROWN.

757

B. F. Jonas, E. D. Farrar, and E. B. Kruttschnitt, (West & McGown, on the brief,) for plaintiffs in error. Branch K. Miller, (Brown, Lane & Jackson and T. W. Gregory, on the brief,) for defendants in error. Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge.

PARDEE, Circuit Judge, (after stating the facts.) The judgment in this case, brought here for review, was rendered and entRred on the 18th day of July, 1891, and was in favor of the defendants, adjudging that the plaintiffs take nothing by their suit, and the defendants go hence without day, and recover their costs. In the judgment neither plaintiffs nor defendants were specifically named. On the 10th day of February, 1892, at a subsequent term of the court, on motion of plaintiffs' attorneys, and on notice to defendants' attorneys, the said judgment was amended so far, and only so far, as to insert therein a recital that as to three of the defendants,-Sam Hollis,W. 1'. Darby, and Isaac Hamilton,-who had not been served with process in the case, the plaintiffs' action was dismissed without prejudice, and to insert the names of the plaintiffs and the defendants. A writ of error was taken and allowed on the 6th day of May, 1892, more than 6 months, and nearly 10 months, after the rendition of the .original and it is expressly stated in the petition and bond therefor that the writ of error is sued out for the purpose of reviewing the record and proceedings and the rendition of the judgment rendered in favor of the defendants on the 18th day of July, 1891. It would seem from this statement that the writ of error to this coun was sued out too late, not being taken or sued out within six months aHer the entry of the judgment sought to be reviewed. The eleventh sectioll of the act entitled "An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction d the courts of ,the United States, and. for other purposes," :1PPl'o\eU March 3, 1891, provides "that no appeal or writ of error by which quy order, judgment, or decree may be reviewed in the circuit courts of appeals under the provisions of this act shall be taken or sued out except within .six months after the entry of the order, judgment, or decree sought to be reviewed." We notice, further, that in the statement of the case, (which is agreed to be correct by counS on both sides,) and particularly in 1 the assignment of errors, the case is shown to be one which involves the construction and application of the constitution of the United States, as well as a case in which a law of the state of Texas is claimed to be in contravention of the constitution of the United States. In the fifth section of the act of 1891, supra, it is provided "that appeals or writs of error may be taken from the district courts, or from the existing circuit courts, direct to the supreme .(',ourt, in the following cases: * * * (4) In any case that involves the construction or application of the constitution of the United States; * * * (6) in any case in which the constitution or law of the state is claimed to be in contravention of the constitution of the United States." The sixth S ction of said act gives appellate juris'

FEDliJRAL REPORTER,

vol. 53.

diotiontA> the circuit OOUrU!l of appeals to review by appeal or by writ of error final decisions in the district courts and the existing circuit courts only incases not provided for in the fifth. section of the act. On either or both of the grounds mentioned, it would seem to be our duty to dismiss the and an order to that effect will be entered. '
SMITH v. WEEKS. (Cf,rcu1t Court of Appell1s, First
No.36.

1.

ApPEAL-RlIlVIlilW-BILL OF EXCEPTIONS-TRIAL TO THE COURT.

January 10, 1893.)

In an aetionat law the Issues were referred to a:n: auditor, who found In favor of defendant. The pari!esthereupon entercm into an agree,ment to b'1lbmlt the cause to ,the court on the auditor's report, with a stipulation that, if thecQurt MId .that the auditor's .rullngg were erroneous, plaintiff reserved h!eh1ght to go to the jury,but that, if the court sustained the same, judgment should be entered for defendant. The court approved the audi1J&r's rulings, and entered judgment accordingly. A bill of exceptions was allowedto plainWYi ,who took the case on error to the circuit court of appeals. Hel1,that, Independently of nev.. St. §§ 649,,700, the court had no authority to reView the cause; norb-ad ,It suclJ. power under section 649, for a jurywa8 not unconditionally 'Waived, as requ1red thereby, but there was an axpressreserval1cn of a right to go to the jury ,In certain contingencies. I
, ''

2.

SAME-ST:r.l'QI;ATIONS.

The autoporlt1pf tope a,ppellate court to review the causecQuld not be supplied by an' agreement made therein that the stipulation below should be a1l1ended nuilc'Pro tunc by iltrlklng out the reservation'of a right to go t() the jury, and inserting the words "Jury waived;" for the validity of the exceptions was deterlllln,ed :bY the status at the time when they were taken. ,In the, appellate court constituted no, ground for remand-

S.

SAME-RE1IIANl)··

,reverses.

40

Ing the causo to the circuit court in order that the stipUlation might there be amended; for the court has no power in this case to remand unless It

SAMlIl-REM.um-MANDATJIl-BILL OF REVIEW.

UncleI.' SUch cil'cumsw.nces the court will affirm the judgment, reserving to plaintitrfn errorllbertyto tile in the circultconrt an application for leave to ftle a bill of review, and to proceed thereon as the circuit court llIay determine. Watson v. Stevens, 51 Fed. Rep. 757, 2 C. C. A. 500, followed.

In EITor to the Circuit Court of the United States for the District of Massachusetts. . At Law. Action brought in the superior court of Suffolk county, Mass., by Sidney Smith against Henry De Forrest Weeks, as executor of the will of Joseph O. Delano, to recover the value of certain shares of stock in the Boston Soapstone Furnace Company. The declaration also contained counts for salary alleged to be due plaintjff, and for a certain sum. as profits in the business. But these cQunts were waived, and plaintiff' relied solely upon the first-mentioned ,cause of action. The cause was removed by defendant, on the gt10und of diverse citizenship, to the federal circuit court; The cause was there refeITed to an auditor, whose findings were in favor of defendant, and,after