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Opinion of the Court.

1876. It was provided that all such claims against the District should in the first instance be prosecuted before the Court of Claims by the contractor, his personal representatives or his assignee, in the same manner and subject to the same rules in the hearing and adjudication of the claims as the court then had in the adjudication of claims against the United States. 21 Stat. 284, 285, SS 1, 2.

By the same act it was provided that if no appeal was taken from the judgment of the Court of Claims in the cases therein provided for, within the term limited by law for appealing from the judgments of that court, “and in all cases of final judgments by the Court of Claims, or, on appeal, by the Supreme Court where the same are affirmed in favor of the claimant, the sum due thereby shall be paid, as hereinafter provided, by the Secretary of the Treasury.” $ 5.

These consolidated suits were brought under the above act, and within the time limited by its provisions.

In the progress of the cause a judgment was rendered in one of the cases in favor of the District for $658.05, and in the others the petitions were severally dismissed. New trials were granted in each case, and time was given for further proof.

By an act of Congress approved February 13, 1895, c. 87, amendatory of the above act of June 16, 1880, it was provided that in the adjudication of claims brought under the act of 1880, “the Court of Claims shall allow the rates established by the Board of Public Works; and whenever said rates have not been allowed, the claimant or his personal representative shall be entitled, on motion made within sixty days after the passage of this act, to a new trial of such cause." 28 Stat. 664.

Tbe cases were beard on the exceptions of the defendant to a referee's report, and the aggregate amount found due from the District was $13,458.33, And the record states that upon the facts set forth in the referee's report “the court, under the act of February 13, 1895, 28 Stat. 664, and in accordance with the agreement of the parties, decides as conclusions of law as to the said sum of $13,458.33, so found due from the District of Columbia, that the several claimants named below each recover judgment against the United States in the amounts stated, viz."

Opinion of the Court.

Here follows, in the record, a statement of the amount found due each claimant, the aggregate being the above sum.

The order referring the cause for a statement of the several accounts was made after the passage of the act of February 13, 1895, and the referee's report was made pursuant to the provisions of that act.

In accordance with the findings of fact and of law the court, on the 22d of June, 1896, entered final judgment in favor of the respective claimants for the amounts found due them respectively, the judgment upon its face purporting to be “within the intent and meaning of the act of February 13, 1895."

On the 3d of September, 1896, the District of Columbia, by the Attorney General of the United States, made application for and gave notice of an appeal to this court. Subsequently, February 25, 1897, the District moved to set aside the judgment of June 22, 1896, and to grant a new trial.

While the motion for new trial was pending Congress passed the act of March 3, 1897, c. 387, making appropriations for the expenses of the government of the District for the fiscal year ending June 30, 1898. That act among other things provided that the above act of February 13, 1895, “ be, and the same is hereby, repealed, and all proceedings pending shall be vacated, and no judgment heretofore rendered in pursuance of said act shall be paid.29 Stat. 665, 669.

Our attention was called by counsel to the case of In re Hall, 167 U. S. 38, 41, in which it is stated that the Court of Claims made the following general order: "The act of 13 February, 1895, 28 Stat. 664, having been repealed by Congress, it is ordered in all suits brought under or subsequent to said act that motions for new trial, applications for judgments and all other papers in such suits be restored to and retained upon the files of the court without further proceedings being had.” This order is not found in the present record.

What was the effect of the act of 1897 upon the power of this court to reëxamine the final judgment of the Court of Claims in these cases? In our opinion, there can be only one solution of this question.

The present cases were brought under the act of 1895, and

Opinion of the Court.

were determined with reference to its provisions. In view of the repeal of that act by Congress, the requirement that pending proceedings be vacated, and the express prohibition of the payment of judgments theretofore rendered, any declaration by this court as to the correctness of the final judgment entered by the Court of Claims under the act of 1895 would be useless for every practical or legal purpose, and would not be in the exercise of judicial power within the meaning of the Constitution. It was an act of grace upon the part of the United States to provide for the payment by the Secretary of the Treasury of the amount of any final judgment rendered under that act. And when Congress by the act of 1897 directed the Secretary not to pay any judgment based on the act of 1895, that officer could not be compelled by the process of any court to make such payment in violation of the act of 1897. A proceeding against the Secretary having that object in view would, in legal effect, be a suit against the United States; and such a suit could not be entertained by any judicial tribunal without the consent of the Government. It seems therefore clear that a declaration by this court in relation to the matters involved in the present appeal would be simply advisory in its nature, and not in any legal sense a judicial determination of the rights of the parties. What was said by Chief Justice Taney in Gordon v. Uniteıl States, 117 U. S. 697, 702, may be here repeated. After stating that this court should not express an opinion where its judgment would not be final and conclusive upon the rights of the parties, and that it was an essential part of every judgment passed by a court exercising judicial power that it should have authority to enforce it, or to give effect to it, the Chief Justice said: “It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not a judicial power confided to this court in the exercise of its appellate ju



risdiction; yet it is the whole power that the court is allowed to exercise under this act of Congress.” See also Hayburn's Case, 2 Dall. 409; United States v. Ferreira, 13 How. 40, 46; In re Sanborn, 148 U. S. 222, and Interstate Commerce Commission v. Brimson, 154 U. S. 447, 483, 486.

It results that:
As no judgment now rendered by this court would have the

sanction that attends the exercise of judicial power, in its
legal or constitutional sense, the present appeal must be dis-
missed for want of jurisdiction and without any determina-
tion of the rights of the parties. It is 80 ordered.




No.5. Argued October 15, 16, 1901. – Decided November 18, 1901.

Although the certificate of the chief justice of a state supreme court that

a Federal question was raised is insufficient to give this court jurisdiction, where such question does not appear in the record, it may be resorted to, in the absence of an opinion, to show that a Federal question, which is

otherwise raised in the record, was actually passed upon by the court. A charter of a railroad company incorporated by an act of the legislature

of Mississippi, passed in 1882, contained an exemption from all taxation for twenty years. The state constitution adopted in 1869 provided that the property of all corporations for pecuniary profit, should be subject to taxation, the same as that of individuals, and that taxation should be equal and uniform throughout the State. Prior to the incorporation of the railroad company, the supreme court of the State had construed this provision of the constitution as authorizing exemptions from taxation, but had declared that such exemptions were repealable. Held, That this court was bound by this construction of the constitution, and, therefore, that the railroad company could not claim an irrepealable exemption in its charter. Held, also, That the exemption being repealable, the question whether it had in fact been repealed was a local and not a Federal

question. A ruling of a state supreme court that a repealable exemption has been in

Statement of the Case.

fact repealed by a subsequent statute, is one which turns upon the construction of a state law, and is not reviewable here, although if the ex. emption were irrepealable and thus constituted a contract, it would be the duty of this court to decide for itself whether the subsequent act did

repeal it or impair its obligation. A privilege tax upon a railroad corporation is a tax upon property.

This was a bill in equity filed in the court of chancery of Harrison County, Mississippi, by the railroad company, against the tax collector of that county to enjoin the collection of certain property and privilege taxes assessed against the railroad company for the fiscal year 1896.

The bill averred in substance the incorporation of the railroad company by an act of the legislature of the State of Mississippi, approved February 23, 1882, c. 542, p. 849, the eighteenth section of which act deciared: “That said company, its stock, its railroads and appurtenances and all its property in this State, necessary or incident to the full exercise of all powers herein granted, shall be exempt from taxation for a term of twenty years from the passage of this act;" that immediately thereafter the corporation entered upon the construction of its road, and at the time of the filing of the bill had about seventy-five miles in operation ; tbat, notwithstanding this charter exemption, the State Railroad Coinmission has returned its property for taxation, and that defendant has demanded not only a privilege tax, but a property tax levied for state and county purposes, and threatens seizure of its property. Wherefore an injunction was prayed.

To this bill, defendant interposed a demurrer for want of equity, and because the exemption was a mere bounty, repealable at the pleasure of the legislature, and void of any element of contract. The demurrer was sustained, and leave granted the plaintiff to amend its bill. Thereupon it filed an amendment alleging that the exemption in the charter constituted a contract between the plaintiff and the State; that the railroad was constructed upon the faith of such contract, and that it was not within the power of the State to repeal the exemption, and invoking in that connection the contract clause of the Constitution. Defendant again demurred. The demurrer was sustained,

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