dinarily to be taken as grants of an exclusive privilege. Charles River Bridge Co. v. Warren Bridge, 11 Pet. 420; Turnpike Co. v. State, 3 Wall. 210; Stein v. Water-Supply Co., 141 U. S. 67, 11 Sup. Ct. 892; Hamilton Gaslight & Coke Co. v. Hamilton City, 146 U. S. 258, 13 Sup. Ct. 90; Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167, 22 N. E. 381. Nor is there anything in the act of annexation which made a contract or created a right beyond the power of the legislature to change. It gave the city the right to purchase or condemn at any time within two years, but this specification of time did not operate to prevent the legislature from enlarging the time, or from granting at any subsequent period during the life of the contract a further right of purchase or condemnation. No consent was asked of the town company in the act of annexation; it entered into no new contract; nothing was done to enlarge the rights which it had against the public. The act was simply one of legislative discretion in respect to municipal organization, and, like any other such act, subject to future modification by the legislature.

Neither can the act of 1892 be adjudged in conflict with the federal constitution because it fails expressly and in detail to prescribe the uses to which the property shall be put by the city of Brooklyn after the condemnation. The property condemned was not vacant land susceptible to a multitude of uses. The character of its use had already been determined by the action of the company. It was already used for public purposes, and the condemnation simply took the title away from the private corporation, and vested it in the municipality. And the statute cannot be adjudged unconstitutional because it did not in terms declare that the city of Brooklyn should continue the same use or appropriate the property to some other equally public purpose.

These are the vital questions in the case. We see no error in the judgment, and it is therefore affirmed.

Mr. Justice PECKHAM takes no part in the decision of this case.

(167 U. S. 38)

In re HALL. (May 10, 1897.) No. 17.

OF

APPEAL FROM COURT OF CLAIMS REPEAL STATUTE AFTER REVERSAL-JURISDICTION. Where a judgment of the court of claims was absolutely reversed for an error as to interest, and the cause remanded for further proceedings, and after the filing of mandate and motion for judgment for the principal without interest, but before the entry of judgment, the statute on which the proceeding was based, which conferred a mere gratuity, was repealed, the court of claims had no jurisdiction to enter judgment.

Application for mandamus.

Edwin Forrest, for petitioner. Ass't Atty. Gen. Dodge, for respondent.

Mr. Justice PECKHAM delivered the opir ion of the court.

This is an original application to this court for a writ of mandamus to the judges of the court of claims, commanding them to cause to be entered a judgment in favor of peti tioner, and against the District of Columbia, for the sum of $8,644.19, as of March 2, 1897, the date of the filing of a mandate from this court with the court of claims in the case of District of Columbia v. Hall. The record now before us gives the history of that case since it was decided by this court in February last.

The facts in the original fitigation out of which this application grows are to be found in the report of the cases of District of Columbia v. Hall, 165 U. S. 340, 17 Sup. Ct. 366, and District of Columbia v. Johnson, 165 U. S. 330, 17 Sup. Ct. 362. It appears therein that this petitioner, under the provisions of the act of congress approved February 13, 1895, had recovered a judgment in the court of claims, which was entered June 22, 1896, against the District of Columbia, for the above-named sum or 8,644.19, with a declaration contained in the judgmsat that such amount became due and payable on the 1st of January, 1877, the effect of which was to grant interest thereon from the last-named date. Upon appeal this court determined that the court of claims erred in the matter of granting interest, and therefore the judgment of that court was reversed and the cause remanded. On the 1st day of March, 1897, the mandate from this court was issued, in which it was "ordered and adjudged by this court that the judgment of said court of claims in this cause be, and the same is hereby, reversed. And it is further ordered that this cause be, and the same is hereby, remanded to said court of claims for further proceedings not inconsistent with the opinion of this court." The mandate was filed with the court of claims on the 2d day of March, 1897; and, on the opening of the court on that day, application was made for judgment in accordance with the mandate and the opinion of this court, the petitioner waiving any interest on the judgment. This motion was consented to by the attorney representing the District of Columbia, but the court of claims refused to immediately grant the motion, and soon thereafter adjourned to the Sth of March. On the 15th of March the court entered an order declining to take any further proceedings in any suits based on the act of congress,-among them being the petitioner's claim, for the reason that the act had been repealed. The repealing act was enacted one day after the filing of the mandate in this case in the court of claims, and the making of the motion by the petitioner for judgment. The judges of the court of claims have made return to the order to show cause why the mandamus should not issue, and in that return they state:

"That on the 2d day of March, 1897,

not being a motion day, according to the practice of said court,-was presented in open court the mandate of the supreme court reversing the judgment in favor of Joseph T. H. Hall, which is described and set forth in the petition, together with a motion for entry of judgment for the sum of $8,664.19; that said motion was presented upon a day when the court was engaged in the regular trial of cases, and, according to the practice of the court, was received without argument, and taken under advisement for decision thereafter; that at or about the same time the attention of the court was called to the pendency of the various motions for new trial from the numerous judgments, embodying the same characteristics which had been held to be erroneous by the supreme court, and on the said 2d day of March, 1897, mandates from the supreme court reversing the three other judgments appealed from as aforesaid, and heard together with that of Joseph T. H. Hall, and in the same form as the mandate set forth in the petition, were filed.

"That on the said 2d day of March, 1897, and before the court, in the ordinary course of its business, had been able to take up for consideration the motion for judgment in favor of said petitioner, or to examine the opinion of the supreme court referred to in the mandate and set forth in the petition, the court adjourned to the 8th day of March, and, while so adjourned, congress enacted and the president approved the act of March 3, 1897, entitled 'An act making appropriations to provide for the expenses of the District of Columbia for the fiscal year ending June 30, 1898, and for other purposes,' which said act contained, amongst other things, the following provision: "That the act approved February thirteenth, eighteen hundred and ninetyfive, entitled "An act to amend an act, entitled 'An act to provide for the settlement of all outstanding claims against the District of Columbia, and conferring jurisdiction upon the court of claims to hear the same, and for other purposes,' approved June sixteenth, eighteen hundred and eighty," 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.'

"That at the time of the passage of said act the judgment in favor of the petitioner, as also of said three other appellants, had been by the action of the supreme court reversed and set aside. The judges of the court of claims, upon conference and due consideration, reached the conclusion that said act of congress had taken away the power of the court to render judgment or take any step or proceeding in the said case, or in any of the other cases pending, or with reference to any of the judgments theretofore rendered under and by virtue of the jurisdiction conferred by said act of February 13, 1895, wherefore on the 15th day of March, 1897 (that being the first motion day after the

court resumed its sittings on the 8th of March, and the regular day upon which, according to the practice of the court of claims, judgments and decisions are rendered and entered), the said court of claims made the order set forth on page 7 of the petition in the following words, to wit:

""The act of 13th 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.""

The petitioner now insists that he has the legal right to a judgment in the court of claims for the original sum of $8,644.19, because he says the judgment of that court originally awarding him that sum was not in effect wholly reversed by this court, but only in part, in regard to interest, and that as to all other matters the judgment, under the opinion of this court, substantially remained and was in full force on the 2d day of March, at the time of the filing of the mandate and of the making of his motion to the court of claims. He therefore further insists that he was, when he made that motion, entitled at once to the judgment he asked for, and that, if it had then been given, he would have been enabled to obtain payment of the judgment prior to the repeal of the act upon which the judgment was originally founded. He asks, therefore, that this court direct the court of claims to enter a judg ment nunc pro tunc as of March 2, 1897.

In this case the judgment was, in form at least, absolutely reversed, and the case remanded to the court of claims for further proceedings not inconsistent with the opin ion of this court. Confessedly, further proceedings by virtue of the mandate, and under the direction of the court of claims, were necessary to be taken before any judgment could be entered in such court and thereafter enforced; and, before any proceedings were taken by way of the entry of any judgment, congress interfered by repealing the statute. When the mandate was filed in the court of claims, and the motion made for judgment, that court was engaged in the regular trial of causes. It was not a motion day, according to the practice of the court, and the court received the mandate, and heard the request, and took the same under advisement for decision thereafter. The court was not bound, upon the simple presentation of the mandate and the statement of counsel, even if there were no opposition on the part of the attorney for the District of Columbia, to immediately drop all other business and grant the motion. It had the right, and it was its duty, in the due and orderly progress of its work, to take the motion into consideration, if it thought it necessary, so that it might ex. amine the opinion, and come to an intelligent conclusion as to what action was required

of it for the purpose of complying with the terms of the mandate. The fact that the court had already heard of the decision of this court, and had casually seen the opinion, did not alter the case.

The effect of the passage of the repealing act was to take away the jurisdiction of the court of claims to proceed further in those cases which were founded upon the act thus repealed. This the congress had power to do. Insurance Co. v. Ritchie, 5 Wall. 541, 544; Ex parte McCardle, 7 Wall. 506; Ex parte Yerger, 8 Wall. 85; Railroad Co. v. Grant, 98 U. S. 398; Gurnee v. Patrick Co., 137 U. S. 141, 11 Sup. Ct. 34.

This court had just decided that the act of February 13, 1895 (28 Stat. 644), simply conferred a gratuity upon the persons covered by its provisions; that there was no element of a legal or an equitable claim in their favor against the municipal authorities of the District, but that the act provided for a gift which was wholly without consideration. The repeal of the act took away all jurisdiction in the court of claims to proceed further, so far as concerned any rights founded upon the act so repealed. If there had been no repeal, and the court of claims had, after the filing of the mandate from this court, proceeded to a new trial of the whole merits of the original judgment, the case cited by the petitioner (Gaines v. Rugg, 148 U. S. 228, 13 Sup. Ct. 611) might be in point. It does not touch the case, upon the facts here presented.

In this case, however, the record originally before us showed that the petitioner had at one time obtained a judgment for over $1,000 against the District of Columbia upon a cause of action not founded upon the act of congress just repealed. This judgment had been vacated. We do not intimate by this decision that the court of claims would not have jurisdiction to entertain and grant a motion on the part of petitioner, if he should be so advised, to reinstate that original judgment. That question is not before us, and we allude to it simply for the purpose of stating that our decision herein should not be taken as any expression of opinion adverse to the granting of a motion such as is above mentioned.

The application for a writ of mandamus is denied.

(166 U. S. 709)

LOUISVILLE & N. R. CO. v. CITY OF LOUISVILLE.

(April 26, 1897.)

No. 261.

JURISDICTION OF SUPREME COURT-FEDERAL
QUESTION.

Where an "agreed case" in a state trial court presented no issue as to the validity of a state statute, but simply the question of its construction, and only the question of construction was considered by the highest court of the state on appeal, the supreme court cannot take juris

diction upon the ground that the statute, as construed by that court, impairs the obligation of a contract, and denies the equal protection of the laws. The mere fact that there was a motion to set aside the judgment of an intermediate appellate court, on the ground that it had no jurisdiction, because the validity of the statute under the constitution of the United States was involved, which motion was denied, was not a sufficiently definite tender of the constitutional question.

In Error to the Court of Appeals of the State of Kentucky.

This was a case instituted in the Louisville chancery court by the Louisville & Nashville Railroad Company against the city of Louisville by the filing of an agreed case under the following provisions of the Civil Code of Practice of the State of Kentucky:

"Sec. 637. Parties to a question which might be the subject of a civil action may, without action, state the question and the facts upon which it depends, and present a submission thereof to any court which would have jurisdiction, if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The court shall, thereupon, hear and determine the case, and render judgment as if an action were pending. "Sec. 638. The case, the submission, and the judgment shall constitute the record.

"Sec. 639. The judgment shall be with costs, and may be enforced, and shall be subject to reversal, in the same manner as if it had been rendered in an action, unless otherwise provided in the submission."

The agreed case commenced as follows: "The Louisville & Nashville Railroad Company and the city of Louisville hereby state to the court the facts hereinafter presented, and submit to the court for decision the question hereinafter stated." Then followed a statement of facts, and the stipulation thus proceeded:

"Upon the foregoing facts, was the Louisville & Nashville Railroad Company entitled to a discount-and, if so, then to what discount-upon the tax bills mentioned herein on February 4, 1832, when it offered to pay said bills less a discount, or on February 6, 1892, when it paid the amount of said bills under protest?

"If the court shall be of the opinion that the railroad company, at the time of the said tender or payment, was entitled to a discount upon the amount of said tax bills, then judgment may be entered for the amount of such discount, with interest from February 6, 1892, until paid, in favor of the Louisville & Nashville Railroad Company against the city of Louisville for the amount of such discount and the costs of this proceeding; but, if the court shall be of the opinion that said railroad company was not entitled to any discount on said bills on said day of tender or payment, then judgment may be entered dismissing the case, and giving judg. ment for costs of this proceeding in favor of

the city of Louisville against the Louisville & Nashville Railroad Company. The right of appeal from the judgment of the Louisville chancery court is not waived."

The case was heard, and the chancellor entered the following judgment:

"This agreed case having been submitted in chief, and the court, being sufficiently advised, delivered a written opinion, which is now filed; and, in accordance therewith, it is considered by the court that plaintiff, the Louisville & Nashville Railroad Company, had no right to any discount on its tax bill when it paid or tendered payment of same, as shown in said agreed case, and that this said action be, and it is therefore, dismissed, and that defendant recover of plaintiff its costs herein expended."

The plaintiff excepted and carried the case by appeal to the superior court of Kentucky, and the judgment of the chancellor was affirmed.

"(2) That this violates the obligation of the contract contained in the charter of the Louisville & Nashville Railroad Company, whereby it was agreed that its property should not be assessed higher than other real property; thus conflicting with the provision of the constitution of the United States which forbids any state to pass a law impairing the obligation of a contract; and

"(3) That, independently of the question of contract, these statutes, as construed by the court of appeals, impose a different rate of taxation upon the property of railroad companies from that which is imposed upon property of the same kind, in the same place, and under the same circumstances, when owned by any other class of persons than railroad companies; and that, therefore, it comes within the inhibition of the fourteenth amendment of the constitution of the United States, which provides that no state shall deny to any person within its ju

After the judgment of affirmance, the railroad company "moved the court to set aside the submission and judgment, and transfer this case to the court of appeals, or to grant an appeal to the court of appeals," on these grounds:

"This day came appellant, by counsel, and stated to the court that it believes the statutes involved in this action, as to the taxation of railroad property in the city of Louisville, as construed by the court in its opinion lately delivered herein, to be invalid, and to be in violation of the constitutions of the state of Kentucky and of the United States, and that it desired to be heard on the question of the validity of said statutes, and thereupon moved the court to set aside its judgment and the order of submission herein, and to transfer this action to the court of appeals; and came appellant further, by counsel, and moved the court to grant it an appeal from its judgment herein to the court of appeals in the event the court should overrule the preceding motions above set forth."

The superior court overruled the motion to set aside the judgment and submission, and transfer the cause, but granted the appeal to the court of appeals, which being duly prosecuted, the judgment was again affirmed. 29 S. W. 865.

A writ of error was allowed from this court by the chief justice of the court of appeals.

The assignment of errors in the brief of counsel is as follows:

"(1) That the statutes involved, according to the construction put upon them by the court of appeals of Kentucky, do, in substance and effect, impose a different rate of taxation upon the property of the Louisville & Nashville Railroad Company from that which is imposed upon other property, either real or personal, in the city of Louisville;

and

Helm Bruce, for plaintiff in error. L. Stone, for defendant in error.

Henry

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

By the terms of the agreed case, the only questions submitted to the chancery court of Louisville were whether the railroad company was entitled to a discount on certain tax bills, and, if so, what discount; and it was stipulated that, if the court should be of opinion that the company was not entitled to any discount, then judgment should be entered dismissing the case, with costs. The chancellor, in his opinion, pointed out that the act of the general assembly of Kentucky entitled "An act to revise and amend the tax laws of the city of Louisville," approved May 12, 1884, provided for a discount of 3 per cent. on taxes paid in January, of 2 per cent, on those paid in February, and of 1 per cent. on those paid in March; but that the assessments for taxation, to which the act related, did not in terms include railroad property, the assessment of which was provided for by chapter 92 of the General Statutes of Kentucky. This chapter provided for the assessment of railroad property by state authority for state, county, city, and town purposes, for enforcement of payment by penalties on its chief officer, and re quired payment by a named day; but it nowhere, in terms or by implication, allowed any deduction for prompt payment of state, county, city, or town taxes; and it forbade assessments or collections of such taxes in any mode other than that therein designated

The chancellor held that such a deduction was pro tanto in the nature of an exemption, and that exemptions were not allowable except where express authority affirmatively appeared therefor, and that no such authority appeared here, and he then said: "The ground of inequality in taxation, so much re

lied on by plaintiff's counsel, is not entitled to much weight, for the principle, if such there be, is misapplied. Taxes are imposed in this state on corporations by classes. No member of a class can complain if he is treated like all in the same class. If it be wrong not to allow deductions to banks, railroads, gas companies, etc., for prompt payment of taxes, then the legislature can remedy the wrong. In the present condition of the statute the courts cannot."

And the court, being of opinion that the company was not entitled to any discount, entered judgment strictly in accordance with the stipulation of the parties. There was no intimation in the agreed case that any constitutional question was submitted for determination, and no such question was propounded. The matter was one of construction merely.

The superior court had no appellate jurisdiction of an appeal involving the validity of a statute (Ky. Codes 1895, p. 472), as was conceded at the bar, and yet plaintiff in error prosecuted its appeal to that court. After the superior court had gone to judgment the railroad company made its motion to set the judgment aside, and transfer the case to the court of appeals, on the ground that it believed the statutes, "as construed by the court in its opinion lately delivered herein, to be invalid, and to be in violation of the constitutions of the state of Kentucky and of the United States." Even then the company did not indicate in any way in what particulars the statutes were in contravention of either of those instruments. This motion was overruled, and an appeal allowed to the court of appeals. The court of appeals arrived at the same conclusion as the other courts, and rejected the claim for a discount as not permitted by the statute. The court closed its opinion thus:

"The city is not allowed to fix any value on appellant's property. The penalty on those failing to pay taxes to the city is not made to apply to the appellant, and it is plain, we think, that the charter provision or the law in regard to the assessment, collection, and payment of the taxes of the citizen within the municipality does not include railroads or such corporate property, and equally apparent that the legislature, in regard to these corporations, can enact a different system or mode of assessment and collection from that under which taxes are ordinarily collected; and the discount allowed the citizen to encourage the prompt payment of taxes is not a discrimination in his favor as against appellant, nor is it open to constitutional objection. Kentucky Railroad Tax Cases, 115 U. S. 321, 6 Sup. Ct. 57."

The record does not disclose that any federal question was specifically raised in the court of appeals, and the sole reference in the opinion to constitutional objection is in the language above quoted. Doubtless, that ref

erence was by way of answer to the contention that the statute might fail altogether unless construed to include railroad companies.

In Powell v. Brunswick Co., 150 U. S. 433, 439, 14 Sup. Ct. 166, 168, we said: "As many times reiterated, it is essential to the maintenance of jurisdiction upon the ground of* erroneous decision as to the validity of a state statute, or a right under the constitution of the United States, that it should appear from the record that the validity of such statute was drawn in question as repugnant to the constitution, and that the decision sustained its validity, or that the right was specially set up or claimed and denied. If it appear from the record by clear and necessary intendment that the federal question must have been directly involved, so that the state court could not have given judgment without deciding it, that will be sufficient; but resort cannot be had to the expedient of importing into the record the legislation of the state as judicially known to its courts, and holding the validity of such legislation to have been drawn in question, and a decision necessarily rendered thereon, in arriving at conclusions upon the matters actually presented and considered. A definite issue as to the validity of the statute or the possession of the right must be distinctly deducible from the record before the state court can be held to have disposed of such a federal question by its decision."

And see Oxley Stave Co. v. Butler Co., 17 Sup. Ct. 709, in which this subject is largely considered, and the authorities cited.

The agreed case presented no issue as to the validity of the statute, but simply the question of its construction. The company did not sue to recover back the taxes it had paid on the ground of the invalidity of the laws under which they were levied, but to recover the discount allowed to taxpayers by a particular statute. The chancery court was shut up by the agreement to determine whether the company was or was not entitled to that discount. The construction by the chancery court was concurred in by the superior court and by the court of appeals, and the judgment of the chancery court, rendered as stipulated, was affirmed. It is now said that, as the proper construction of the statute was definitively settled by the court of appeals, this court can take jurisdiction at that stage of the case, because, as thus construed, the statute impaired the obligation of a contract created by the charter of the company (which was not mentioned in the agreed case), and because it denied the equal protection of the laws in contravention of the fourteenth amendment, although no definite issue in either respect was tendered throughout the proceedings, unless the mention of the constitution of the United States on the motion to set aside may be so regarded. We do not think that was sufficient. Writ of error dismissed.