[217]

"Therefore, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Baltimore and Potomac Railroad Company, incorporated by the said Act of the General Assembly of Maryland, shall be, and they are hereby, authorized to extend into and within the District of Columbia, a lateral railroad, such as the said company shall construct or cause to be constructed, in a direction towards the said District, in connection with the railroad which they are about to locate and construct from the City of Baltimore to the Potomac River, in pursuance of their said Act of incorporation; and the said Baltimore and Potomac Railroad Company are hereby authorized to exercise the same powers, rights, and privileges, and shall be subject to the same restrictions in the extension and construction of the said lateral railroad into and within the said District as they may exercise or are subject to, under and by intent of their said charter or Act of incorporation, in the extension and construction of any railroad within the State of Maryland; and shall be entitled to the same rights, compensation, benefits, and immunities, in the use of the said road, and in regard thereto, as are provided in their said charter, except the right to construct any lateral road or roads within the said District, from the said lateral branch or road hereby authorized; it being expressly understood that the said Baltimore and Potomac Railroad Company shall have power only to construct from the said Baltimore and Potomac Railroad one lateral road within the said District to some point or terminus within the City and County of Washington, to be determined in the manner hereinafter mentioned."

the said Baltimore and Potomac Railroad to the | Mary's River, with such branches at any point
District of Columbia:
of said railroad, not exceeding twenty miles in
length, as the said president and directors may
determine. The said road when completed not
to be more than sixty-six feet wide, except at
or near its depots or stations, where the width
may be made greater, with as many tracks as
the president and directors may deem neces-
sary; and the said president and directors
may cause to be made, or may contract with
others for making, said railroad or any part of
of it, and they or their agents, or those with
whom they may contract or their agents, may
enter upon and use and excavate any lands
which may be wanted for the site of said road
or the erection of warehouses or other works
necessary for the said road or for its construc-
tion and repair; and that they may build bridges,
fix scales and weights, lay rails, may take and
use earth, gravel, stone, timber, or other ma-
terials which may be needed for the construc-
tion and repair of the said road or any of its
works, and may make and construct all works
whatever which may be necessary and expe-
dient in order to the proper completion and
maintenance of the said road, and they may
make, or cause to be made, lateral railways in
any direction whatever from the said railroad,
and for the construction, repair and maintenance
thereof shall have all the rights and powers
hereby given in order to the construction and
repair of said principal railroad, and may also
own and employ steamboats or other vessels to
connect the said railroad or railroads with other
points by water communication: Provided,
Nothing herein contained shall be construed to
authorize the said company to take private
property for their use without compensation
agreed upon by the company and the owners,
thereof, or awarded by a jury, as hereinafter
provided, being first paid or tendered to the
party entitled to receive such compensation."

By section 3 it was provided that the com-
pany in passing into the District aforesaid,
and constructing the said road within the same,
shall enter the City of Washington at such Stat. at L. 1, 2), it was declared that the Bal-
By Act of Congress of March 18, 1869 (16
place, and shall pass along such public street, timore and Potomac Railroad Company "may
or alley, to such point or terminus within the enter the City of Washington with their said
said city as may be allowed by Congress, upon railroad and construct the same within the
presentation of survey and map of proposed
location of said road: Provided, That the level limits of said city on and by whichever one of
of said road within the said city shall conform the two routes herein designated the said com-
to the present graduation of the streets, unless pany may elect and determine upon;" and by
Congress shall authorize a different level."
The twelfth section of the Act of the Legis-2, a modification of the second of these two
lative Assembly of Maryland, referred to in the each was described as a point at the intersec-
routes was authorized. The terminal point in
above mentioned Act of Congress (Laws, Mary- tion of South C and West Ninth Streets.
land, 1853, p 234), reads thus:

"SEC. 12. And be it enacted, That the president and directors of the said company shall be, and they are hereby, invested with all the rights and powers necessary to the construction, working, use, and repair of a railroad from some suitable point in or near the City of Baltimore, and thence within one mile of the Town of Upper Marlboro, in Prince George's County, and as near to said town, within the limits of said distance, as may be practicable, and by or near the Town of Port Tobacco in Charles County, to a point on the Potomac River, to be selected by the president and directors of said company hereby incorporated, not higher up than Liverpool Point, and not lower down than the mouth of St.

the Act of March 25, 1870 (16 Stat. at L. 78,

The company made choice of the second of the projected routes, commencing on the western shore of the Eastern Branch, between South L and South M Streets, and thence passing through K Street and Virginia Avenue to the terminal point on Ninth Street.

By Act of June 21, 1870 (16 Stat. at L. 161), Congress enacted 'that the Baltimore and Potomac Railroad Company be, and they are hereby, authorized and empowered to extend their lateral branch, authorized by the Act to which this is a supplement, and by former supplements to said Acts, by the way of Maryland Avenue, conforming to its grade, to the viaduct over the Potomac River at the City of Washington, known as the Long Bridge, and to extend their tracks over said bridge, and connect

[218]

[219]

[222]

words.

"Where a state court refuses to give effect to|word “authority" stands upon the same footing the judgment of a court of the United States with "treaty" or "statute;" and said the court, rendered upon the point in dispute, and with through Chief Justice Chase: jurisdiction of the case and the parties, a ques"Something more than a bare assertion of tion is undoubtedly raised which, under the Act of 1867, may be brought to this court for such an authority seems essential to the jurisrevision. The case would be one in which a diction of this court. The authority intended a title or right is claimed under an authority ex-by the Act is one having a real existence, de ercised under the United States, and the de If a different construction had been intended, rived from competent governmental power. cision is against the title or right so set up. It would thus be a case arising under the laws of Congress would doubtless have used fitting [223] the United States establishing the circuit court tion in cases of decisions against claims of auThe Act would have given jurisdicand vesting it with jurisdiction." This is so because a claim of right or title under an authority under the United States." "In many cases the question of the existence of an authority exercised under the United States was sufficient to give jurisdiction under that Act; thority is so closely connected with the ques whereas, the Act of 1885 does not so provide, dertake to separate them, and in such cases the tion of its validity that the court will not un but only that the validity of the authority must be drawn in question. The distinction is pal- question of jurisdiction will not be considered pable between a denial of the validity of the apart from the question upon the merits, or exauthority and a denial of a title, right, privi- cept upon hearing in regular order. But where, as in this case, the single question is not of the lege, or immunity claimed under it. That part of original section 25, and of the validity but of the existence of an authority, Act of 1867, as to decisions in favor of the va- could have been, no decision in the state court and we are fully satisfied that there was, and lidity of a statute of, or of an authority exercised under, any State, when drawn in ques-existing in fact, and that we have, therefore, against any authority under the United States tion on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, has been frequently passed upon, and the distinction between the construction of a statute, or the extent of an authority, and the So in Lewis v. Campau, 70 U. S. 3 Wall. 106 validity of a statute, or of an authority, pointed [18: 211], where the final judgment of the highout. Thus in Commercial Bank v. Bucking- est court of law and equity in the State of ham, 46 U. S. 5 How. 317 [12: 169], where a Michigan was that the revenue stamps attached general law had declared all banks liable to to a deed offered in evidence and objected to pay six per cent interest on their notes, when as not having stamps proportioned to the value they had refused payment on demand, and a of the land conveyed, were sufficient, was held subsequent Act, incorporating the bank in not a subject for review by this court under the question, provided for the payment of twelve 25th section of the Judiciary Act; and in per cent, and the question was whether the Merced Min. Co. v. Boggs, 70 U. S. 3 Wall. 304, bank was liable to pay eighteen, this court 310 [18: 245, 247] which was an action of ejectheld that the question submitted to and decided ment brought for the possession of certain minby the state court was one of construction and eral lands in California, where the defendant not of validity. There both the prior and sub-contended that he was in possession by virtue sequent statutes were admitted to be valid under any construction of them, "And therefore no construction placed by the state court on either of them could draw in question its validity, as being repugnant to the Constitution of the United States, or any Act of Congress." Bridge Proprietors v. Hoboken Co. 68 U. S. 1 Wall. 116, 144 [17:571, 576].

no jurisdiction of the case brought here by writ
of error, we can perceive no reason for retain-
ing it upon the docket."

of an authority inferred from the general pol-
icy of the United States in relation to mines of
gold and silver, Chief Justice Chase, speaking
for the court, in dismissing the writ of error,
said:

"The decision was, that no such license ex

isted; and this was a finding by the court of a In Lawler v. Walker, 55 U. S. 14 How. 149 question of fact upon the submission of the [14: 364], where, in 1816, the Legislature of whole case by the parties, rather than a judgOhio had passed an "Act to prohibit the issu-ment upon a question of law. It is the same ing and circulation of unauthorized bank case, in principle, as would be made by an alpaper," and, in 1839, an Act amendatory there-legation in defense to an action of ejectment, of a patent from the United States with an aver of, and the question arose whether or not a canal company, incorporated in 1837, was sub-ment of its loss or destruction, and a finding by ject to these Acts, it was held that the Supreme the jury that no such patent existed, and a conCourt of Ohio, in deciding that it was, sequent judgment for the defendant (plaintiff). gave a construction to an Act of Ohio, which Such a judgment would deny, not the validity, neither of itself nor by its application involved but the existence of the patent. And this court [224] in any way a repugnancy to the Constitution would have no jurisdiction to review it." of the United States, by impairing the obligation of a contract."

only

In Gill v. Oliver, 52 U. S. 11 How. 529 [13:
799], under a treaty between the United States
Whenever the power to enact a statute as it and Mexico a sum of money was awarded to be
is by its terms, or is made to read by construc-paid to the members of the Baltimore Mexican
tion, is fairly open to denial and denied, the
validity of such statute is drawn in question,
but not otherwise.

In Millingar v. Hartupee, 73 U. S. 6 Wall. 258, 262 [18:829, 830], it was held that the

Company, and the proceeds of one of the shares
of this company were claimed by two parties,
and the judgment of the Court of Appeals of
Maryland as to which of the claimants was en-
titled to the money was held not reviewable by

[225]

this court. Williams v. Oliver, 53 U. S. 12 | distinctly averred in the pleading or appear affirm-
How. 111 [13: 915].
atively in some other part of the record.

than the one in which the plaintiff was a citizen.

The case at bar does not involve the exercise unless it appears affirmatively in the petition for
2. A case is not removable from the state court
of an authority under the United States, in the removal, or in the record, that at the commence-
sense of an authority to act for the Government of the action, and also when the removal was
ment; but it is claimed that the railroad com-
asked, the defendants were citizens of another State
pany acted under certain statutes of the United
States authorizing such action, and that the va-
lidity of these statutes, or of authority under
them, was denied.

3. Where the petition for removal does not allege the citizenship of the parties except at the date the record that defendants were, at the commencewhen it was filed, and it is not shown elsewhere in ment of the action, citizens of a State other than the one of which the plaintiff was, at that date, a citizen, this court cannot consider the merits of the

case.

Argued March 11, 1889. Decided April 1, 1889.
[No. 190.]
ERROR to the Circuit Court of the United

But the Supreme Court of the District of Columbia did not deny the right of the defendant company to use its tracks in Washington 4. In such case the judgment will be reversed, on on Maryland Avenue between Ninth and the ground that the circuit court had no jurisdic Tenth Streets, in a lawful manner, for the pur-rections to send it back to the state court. tion, and the case remanded to that court, with dipose of transacting its lawful business; but, on the contrary, the jury was instructed that the plaintiff was not entitled to recover for any annoyances, discomforts, or inconveniences, [226] which resulted from such uses of Maryland Avenue by the railroad company "as were reasonably incident to the careful conduct of its through business, and to the maintenance and careful use of its freight depot or station abutting on the south side of said avenue between said Ninth and Tenth Streets southwest," and the lawful uses to which the street might be put by the railroad company were clearly explained.

[230]

tates for the Western District of Missouri, to review a judgment against defendant below in an action to recover amounts due on subscriptions of stock and to have such amounts applied upon a judgment against the corporation. Reversed.

Statement by Mr. Justice Harlan:

This action was commenced on the 25th day of July, 1881, in one of the Courts of Missou ri, by the defendant in error against the Texas and Atlantic Refrigerator Car Company, a corporation of that State, Robert S. Stevens, and Henry D. Mirick. Its object was to reach, and have applied, in satisfaction of a judgment obtained by the plaintiff against the car company, the several amounts due from Stevens and Mirick on their subscriptions of stock in that company.

The jury were told that all stoppage of trains and shifting of cars necessary for carrying cars out of its freight depot over the different tracks for the purpose of making up freight trains were lawful. The right of the railroad company to establish freight stations or to lay as many tracks "as its president and board of directors might deem necessary" was not questioned. But the court also held that the comStevens and Mirick filed a joint petition for pany was not justified in occupying the public the removal of the case into the Circuit Court streets for the purposes of a freight yard as of the United States, upon the ground of the such, because the various statutes bearing up-diverse citizenship of the parties. The allegaon the matter did not authorize such occupation in the petition was that the plaintiff "is a tion, with which conclusion we are inclined to citizen of the State of Missouri," and that the agree, though we forbear a determination of defendants "are not citizens of the State of [231] the point until presented in a case properly Missouri, but are citizens of the State of New pending before us. The validity of the stat-York." utes, and the validity of authority exercised under them, are, in this instance, one and the same thing; and the validity of a statute," as these words are used in this Act of Congress, refers to the power of Congress to pass the particular statute at all, and not to mere judicial construction as contradistinguished from a denial of the legislative power. In our opinion the validity of no Act of Congress, or authority under the United States, was so drawn in question here as to give us jurisdiction, and therefore, as the amount of the judgment did not exceed five thousand dollars,

The writ of error must be dismissed.

The state court made an order for the re-
moval of the case to the Circuit Court of the
United States. In the latter court the neces-
sary pleadings having been filed, the case was
tried, resulting in a verdict and judgment
against Stevens for the sum of $5,027.33, and
against Mirick for the sum of $627.41. The
court having overruled a motion for new trial,
and also a motion in arrest of judgment, Ste-
vens has brought the case here for review.

in this court as to the right of Stevens and
No question was made in the court below or
Mirick to remove the case from the state court.

Messrs. A. H. Garland and James Carr,
for plaintiff in error:

If the court had no jurisdiction over the person or subject matter, its judgment and orders are regarded as nullities.

Thompson v. Whitman, 85 U. S. 18 Wall. 457 (21: 897); Knowles v. Logansport Gaslight & Coke Co. 86 U. S. 19 Wall. 58 (22: 70); Hall v. Lanning, 91 U. S. 160 (23: 271); Christmas v. Russell, 72 U. S. 5 Wall. 305 (18:479); Elliott v. Peirso!, 26 U. S. 1 Pet. 328 (7:164); Re Savo yer, 124 U. S. 200 (31: 402); Williams v. Whit lock, 14 Mo. 552.

Mr. Geo. P. B. Jackson, for defendant in

error:

This proceeding may not have been removable to the federal court; but the plaintiff in error procured the removal for his own benefit and is now estopped to question the regularity of it.

Bushnell v. Rennedy, 76 U. S. 9 Wall, 387393 (19: 736-739); Seward v. Comeau, March 21st, 1881, 103 U. S., Book 26, Law ed. 438;* Ayers v. Watson, 113 U. S. 594 (28: 1093).

Mr. Justice Harlan delivered the opinion of the court:

when law may be repealed-taxation by municipal corporation.

1. The second section of the New Jersey Act of 1862, for the taxation of the poor farm and personal property thereon by the Township of North Brunswick, was repealed by the Act of 1866 exempting from taxation property used exclusively for charitable purposes.

2. The second section of the Act of 1862 did not create a contract, the obligation of which could not be constitutionally impaired by the repeal of such second section.

3. Such a grant of the power of taxation by the to revocation, modification and control by the Legislature to a municipal corporation is subject Legislature of the State.

right of taxation conferred upon a municipal cor4. There is no element of private property in the

[No. 193.]

Argued March 12, 1889. Decided April 1, 1889.

1. It was held in Robertson v. Cease, 97 U.
S. 646, 649 [24: 1057, 1058], upon writ of errorporation.
from a Circuit Court of the United States, that
"In cases where jurisdiction depends upon the
citizenship of the parties, such citizenship, or
the facts which in legal intendment constitute
it, should be distinctly and positively averred
in the pleadings, or they should appear affirma-
tively and with equal distinctness in other parts
of the record." Mansfield, C. & L. M. R. Co.
v. Swan, 111 U. S. 379, 382 [28: 462, 463];
Hancock v. Holbrook, 112 U. S. 231 [28: 715]
Thayer v. Life Asso. 112 U. S. 719 [28:865];
Continental Ins. Co. v. Rhoads, 119 U. S. 239
(30: 380].

2. The case was not removable from the state court, unless it appeared affirmatively in the petition for removal, or elsewhere in the record, that at the commencement of the action, as well as when the removal was asked, Stevens and Mirick were citizens of some other State than the one of which the plaintiff was, at those respective dates, a citizen. Gibson v. [232] Bruce, 108 U. S. 562 [27:825]; Houston & T. C. R. Co. v. Shirley, 111 U. S. 358, 360 [28: 455, 456]; Mansfield, O. & L. M. R. Co. v. Swan, supra; Akers v. Akers, 117 U. S. 197 [29:888]. 3. The petition for removal does not allege the citizenship of the parties except at the date when it was filed, and it is not shown elsewhere in the record that Stevens and Mirick were, at the commencement of the action, citizens of a State other than the one of which the plaintiff was, at that date, a citizen. The court, therefore, cannot consider the merits of the case. Metcalf v. Watertown, 128 U. S. 586 [ante, 513]; Morris v. Gilmer, 129 U. S. 315, 325 [ante, 690, 693].

189]

The judgment is reversed upon the ground that it does not appear that the Circuit Court had jurisdiction, and the case is remanded to that Court, with directions to send it back to the State Court, the plaintiff in error to pay the costs in this Court and in the Court below. Mansfield, C. & L. M. R. Co. v. Swan, supra. Reversed.

NELSON WILLIAMSON, Collector of the
TOWNSHIP OF NORTH BRUNSWICK, Plf.
in Err.,

IN ERROR to the Supreme Court of the State of New Jersey, to review a judgment that an assessment of taxes should be set aside, which had been made upon the poor farm and personal property thereon, in the Township of North Brunswick. Affirmed.

The facts are stated in the opinion.

Mr. John S. Voorhees, for plaintiff in

error:

contract and such contract is within the protecThe right of taxation may be the subject of tion of the Federal Constitution.

Burroughs, Taxn. §§ 66, 109; Cooley, Taxn. 688 f; Piqua Branch of Bk. of Ohio v. Knoop, 57 U. S. 16 How. 369 (14:977); Poindexter v. Greenhow, 114 U. S. 270 (29:185); Murray ▼. Charleston, 96 U. S. 432 (24: 760).

An Act of the Legislature which provides that, for a sufficient consideration, lands shall be exempt from taxation, when accepted, becomes a contract which subsequent legislation cannot impair.

N. J. v. Wilson, 11 U. S. 7 Cranch, 164 (3: 303); Northwestern University v. People, 99 U. S. 309 (25: 387); Hardy v. Waltham, 7 Pick. 108; Landon v. Litchfield, 11 Conn. 251.

When a State has authorized a municipal corporation to exercise the power of local taxation, the power cannot be withdrawn.

Wolff v. New Orleans, 103 U, S. 358, 867 (26: 395,399).

If this contract was valid when made, no subsequent action by the State Legislature or judiciary can impair its obligation.

Green v. Biddle, 21 U. S. 8 Wheat. 1 (5: 547); Havemeyer v. Iowa Co. 70 U. S. 3 Wall, 294 (18: 38); Olcott v. Fond du Lac Co. 83 U. S. 16 Wall. 678 (21:382).

The property of municipal corporations is protected by the clause in the National Constitution securing the inviolability of contracts.

Grogan v. San Francisco, 18 Cal. 590; Town of Milwaukee v. City of Milwaukee, 12 Wis. 93; State v. Tappan, 29 Wis. 664; Hasbrouck v. Milwaukee, 13 Wis. 37; Aberdeen Academy v. Aberdeen, 13 Smedes & M. 645-647; Montpelier THE STATE OF NEW JERSEY AND THE 28 Mich. 228; Lowry v. Francis, 2 Yerg. 534. v. East Montpelier, 29 Vt. 19; People v. Detroit,

D.

MAYOR AND COMMON COUNCIL OF
THE CITY OF NEW BRUNSWICK.
(See S. C. Reporter's ed. 189–200.)
New Jersey tax law-impairment of contract-
*Not reported in the Official Edition. [Ed.]
130 U. S.
U. S.. Book 32.

59

The contracts and private property of municipal corporations are secured by the Federal Constitution.

2 Kent, Com. § 275, 305; Cooley, Const. Lim. $237; Cooley, Taxn. 494, 688 f; Dill. Mun. Corp. $$ 36, 40f and notes, and $114.

915