Appellees Brief — Boston & C. Mining Co. v. Montana Ore Co.

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The Supreme Court of the United States.

OCTOBER TERM, 1902.

NO. 103.

THE BOSTON & MONTANA CONSOLIDATED

COPPER AND SILVER MINING COMPANY,

Appellant,

vs.

THE MONTANA ORE PURCHASING O©OM-

PANY, F. AUGUSTUS HEINZE AND

ARTHUR P. HEINZE,

Appellees.

APPEAL FROM THE CIRCUIT CoURT OF, THE UNITED

States, NINTH Circuit, DISTRICT OF MONTANA.

BRIEF AND ARGUMENT FOR APPELLEES.

STATEMENT.

The appellant, in its statement, has included

many things.entirely foreign to this appeal—mat-

ters which, if they exist at all, are not brought be-

—2—

fore this Court, and cannot be considered by it on

this appeal. We do not conceive any proper pur-

pose for the appellant’s counsel setting them forth,

or making a contention regarding them, or attempt-

ing to draw inferences from them. They are disposed

of by the statement that they do not exist in this

case and have no place before the Court. This

Court can only know, from the proper record pre-

sented to it, what has taken place in the case, and

what, if any, question of right is presented by the

appeal. We therefore dismiss all references made

by appellant’s counsel to what they claim was the

position and argument of appellees’ counsel at one

time before the Circuit Court or the United States

Circuit Court of Appeals, as. being unworthy of any

further notice.

It might have occurred to counsel who prepared

the brief for appellant that they were not in any-

wise discharging their duty towards this Court

by a reference to some matters claimed by them

to have taken place or existed, but, since it did

not, we beg to state, without admitting that any *

such matters as they refer to ever had any existence

or are true, that it is a rule so thoroughly

well established as being no longer open to discus-

sion that parties cannot, e'ther by their conduct

or consent, give jurisdiction to a Circuit Court of

the United States ia a case where otherwise no such

jurisdiction existed.

Counsel for appellant have also misstated the

seit nie

case. ~ A true statement with reference to the po-

sition of the appellees before the Circuit Court and

the United States Circuit Court of Appeals would

have disclosed that, upon the appearance of ap-

pellees herein to the original bill of complaint,

they filed a demurrer thereto, upon the following

grounds:

First. That the Court was without any jurisdic-

tion to hear or determine the matter, for the rea-

son that it appeared from the bill of complaint

that there was no federal question involved herein.

Second. That the complainant had not by said

bill made or stated such a case as did or ought to

entitle it to any relief against the defendants.

This demurrer was overruled by the Circuit

Court, and was included in the record when the

case was presented to the United States Circuit

Court of Appeals, and before it when it rendered

its judgment and decision in this case (which is

reported in 85 Federal Reporter, page 867).

Appellant seeks to make it appear that after said

decision by the United States Circuit Court of Ap-

peals an amended bill of complaint was filed in

the Circuit Court, in accordance with the sugges-

tion of the United States Circuit Court of Appeals,

and that it was upon said amended complaint that

the appellees applied to the Circuit Court to dis-

miss the action. (This is stated on pages 9 and 10

of appellant’s brief.) What appellant expected

to gain by such a statement we do not know. The

fh 9 t j .. F —i— qisf %)

fact. is that, upon said amended complaint being

filed, the appellees herein filed their answer there-

to, and then made a motion; based upon the com-

plaint and answer, to the Circuit Court to dismiss

the suit. This was overruled, and, upon a hearing

had, the Circuit Court granted an injunction

against the defendants ‘n the case, who thereupon

took an appeal to the United States Circuit Court

of Appeals, presenting to it the amended complaint

and answer and all matters which had taken place

in the Circuit Court upon said application for an

injunction, together, with the order of injunction

entered by the Circuit Court. The case as thus

presented came on for hearing before the United

States Circuit Court of Appeals. The appellees

herein, who were the appellants in that cause, con-

tended that the amended bill of complaint did not

show any jurisdiction in the Circuit Court, and

that if it could be construed to have shown any such

jurisdiction, the jurisdiction was defeated by the

matters set for in the answer. The Court, after full

argument, rendered its opinion and judgment in the

matter, holding that the Circuit Court had no jur-

isdiction, and ordering the suit dismissed. (Mon-

tana Ore Purchasing Co. et al. vs. Boston & Mon-

tana Consolidated Copper and Silver Mining Co.,

93 Fed. Rep., 274.)

The mandate was filed in the Circuit Court, but

is not included in the printed record herein. , Upon

this mandate, presented by appellees herein, the

ithe

Circuit Court made and entered its decree, dis-

missing the cause in conformity therewith. This

appears from the decree itself. (Record, page 34.)

This is, therefore, not the-decree of the Circuit

Court,. but simply the recognition of the mandate

from the United States Circuit Court of Appeals,

which had the effect, in itself, of dismissing the

cause, and the action of the Circuit Court in con-

forming to this mandate was simply ministerial.

It did not call for the exercise of any judicial de

termination or authority.

We have, then, in the case an attempted appeal,

not from auy judgment or decree of the United

States Circuit Court, but from the decree of the

United States Circuit Court of Appeals. There

can, it seems, be no question but that the appellant

bad a right to appeal from the decree of the United

States Circuit Court of Appeals at any time with-

in one year after the rendition thereof, but no such

appeal was prosecuted, and this appeal cannot be

maintained therefrom.

With this statement of the case, which is in ac-

cord with the facts, we believe there will be no

difficulty in this Court arriving at a determination

to dismiss the appeal.

Ii.

THE MOTION TO DISMISS THE APPEAL.

ARGUMENT AND AUTHORITIES.

The appellees have filed herein their motion to

dismiss the appeal on the following grounds:

First. Because the appeal is not taken from a

final judgment of the Circuit Court, Ninth Circuit,

District of Montana.

Second. Because by this appeal it is sought to

review the decree of the United States Circuit

Court of Appeals, Ninth Circuit.

Third. Because there was, and is, no federal

question involved herein, and because the United

States Circuit Court did not have jurisdiction.

The first two grounds of the motion may be con-

sidered together, since, if the judgment sought to

be rev ed is that of the United States Circuit

Court of Appeals, it cannot be the judgment of

the United States Circuit Court. That it is the

judgment of the United States Circuit Court of

Appeals, and consequently that this appeal

must be dismissed, has already been decided by

this Court.

Board of Com. of Tippecanoe Co. vs. Lucas,

93 U. 8. 108;

Mower vs. Fletcher, 114 U. 8. 127;

Stewart vs. Salamon, 97 U. 8. 361;

Kimpton vs. Jubilee Placer Min. Co. 22

Montana, 107.

No rule is better settled than that an appeal

from a decree entered by the court below in ac-

cordance with the mandate of the appellate court

cannot be maintained.

Aspen Mining & Smelting Co. vs. Billings,

150 U.S. 31; 14 Sup. Ct. Rep. 4.

See, also, to the same effect and as fully support-

ing the motion to dismiss, the following cases:

Bates’ Federal Equity Practice, Sec. 841;

Merrill vs. National Bank, 78 Fed. 208 ;

Bissell Carpet-Sweeper Oo. vs. Goshen

Sweeper Co., 72 Fed. 545;

Central Trust Co. vs. Evans, 73 Fed. 562;

Texas & P. R. Co. vs, Anderson, 149 U. 8.

235;

Re Sanford Fork & Tool Co., 160 U. 8. 246;

16 Sup. Ct. Rep. 291.

There was an appeal to the United States Cir-

cuit Court of Appeals from the decision of the Cir-

cuit Court.

The United States Circuit Court of Appeals had

authority to decide the case as presented to it.

sits

Smith vs. Iron Works, 165 U. 8S. 518; 17

Sup. Ct. Rep: 407;

Mast, Foos & Co. vs. Stover Mfg. Co. 20 Sup.

Ct. Rep. 708 at 712;

Castner vs. Coffman, 20 Sup. Ct. Rep. 842.

If the decision of the United States Circuit Court

of Appeals was erroneous, then, under the appel-

lant’s view of this case, and under the statute, it

would have had a right to appeal therefrom to

this Court. The question of whether or not juris-

diction existed in the United States Circuit Court

depended, ‘not upon diverse citizenship, but upon

whether. or nota federal question was involved.

In such a case the decision of the United States

Circuit Court of Appeals is not final, in the sense

that an appeal cannot be taken therefrom to this

Court. The appellant here is contending that a

federal question was involved, and that the United

States, Circuit. Court had jurisdiction on that ac-

count. It needs no argument, therefore, to point

out that unless an appeal was taken from the judg-

ment of the United States Circuit Court of Ap

peals within the time allowed by the statute that

said judgment became final.

Howard vs. United States, 22 Sup. Ct. Rep.

1 54S, at 54T-546. wie 73

Of course, we are not to be understood as saying :

that upon the case being brought in the state court

Ker ee ;

and tried therein, if there should arise in the trial

of the case a federal question, necessary for deci-

sion and which should be decided by the state

court, that any jurisdiction which this Court would

have by ‘appeal from the final judgment of the high-

est tribunal of the state would be destroyed.

Whether or not there would be such an appeal is

not a question involved in this case. We have,

under the condition of the case, a final judgment

of the Circuit Court of Appeals on the question

of jurisdiction, unappealed from, and an attempt

to review the same by the effort made in this case

to bring it before this Court on the claim of an

appeal from a final judgment of the Circuit Court.

The two grounds which we present for the dis

missal of this appeal are amply supported by both

reason and authority, and we therefore ask for its

dismissal.

III.

The third ground of the motion is likewise well

sustained. It will be observed, from a reading of

the amended complaint (Record, page 1), that in so

far as under the rule of good pleading the com-

plainant attempts to state a cause of action, its

allegations upon thé following points are the _—

waters or necessary ones:

First. ‘That the complainant was a corporation.

—10—

Second. That the defendant Montana Ore Pur-

chasing Company was a corporation.

Third. That the complainant was the owner and

entitled to the possession of the premises described

in the complaint.

Fourth. That the defendant without right en-

tered into the same and extracted ores therefrom,

without the consent of the complainant, and the

value of the said ores.

Fifth. That the defendant was continuing and

threatened to continue the extraction of such ores,

and to repeat said entry; that the complainant had

no means of knowing the amount or value of the

ores which would be extracted, and would be oblig-

ed to bring a multiplicity of suits; and that the

premises were valuable chiefly for the ores therein

contained.

These allegations in nowise presented a federal

question. It is shown by the complaint that the de-

fendants were in the possession of the premises and

engaged in mining ores. It is not alleged in the

complaint that the complainant was in possession,

and this presents at the outset the question of

whether or not the Circuit Court had any jurisdic-

tion. The action is claimed to be one in equity

for an injunction. It is not alleged in the action

at law that the complainant was in the possession.

Did, then, the Circuit Court, upon the allegations

of this amended complaint, have jurisdiction, or

ondtiins

did the fact that the defendants were in possession

and that the plaintiff did not allege that it was in

possession, deprive the Court of any jurisdiction

which it otherwise might have had? It is quite

a general rule with reference to actions brought

en the equity side of the United States Circuit

Court for the purpose of quieting title that they.

cannot be maintained uniess the complainant is, at

the time the action is brought, in the possession of

the premises. . This seems to be upon the theory

that the complainant is seeking equitable relief.

If the rule is to be applied in all actions in which

the complainant seeks equitable relief—and it

would seem in reason that it should be—then the

Circuit Court did not have jurisdiction by reason

of the fact that the complainant was not in posses-

sion, and that it did not allege in its complaint

that it was in the possession of the premises. (The

appellant, in its brief, p. 21, says that the case is, in

effect, one to quiet title.)

We refer the Court on this point to the following

authorities and the cases therein cited:

Cosmos Exploration Co. vs. Gray Eagle Co.,

112 Fed. 4;

United States Min. Co. vs. Lawson, 115 Fed.

1005.

See also:

Railroad Co, vs. Lewis, 172 U. 8. 457 ; 19 Sup.

Ct. Rep. 451;

Colorado Central Con, M. Co. vs. Turck,

150 U. 8. 138;

Egan vs. Hart, 17 Sup. Ct. Rep. 300.

Now this Court cannot take jurisdiction of this

case in face of that decision, but it would not claim

jurisdiction for another reason. The United

States Circuit Court of Appeals having determined

the question, and no appeal having been taken from

its decree, this Cou will not, ir the face of that

adjudication and that fact, entertain jurisdiction

of this appeal.

Robinson vs. Caldwell, 165 U. S. 359;

Carter vs. Roberts, 20 Sup. Ct. Rep. 713.

The appeal should have been taken from the judg-

ment of the United States Circuit Court of Appeals.

Howard vs. United States for the use of

Steward, 22 Sup. Ct. Rep. 543.

Again, where jurisdiction is shown by the com-

plaint it may be taken away by the answer. It is

made the duty of the United States courts to dis-

miss a case the moment it appears that the Court

has no jurisdiction or that a federal question is

not involved. The answer in this case shows

clearly that there is no federal question involved.

That where jurisdiction is shown by the complaint

it may be taken away by the answer is a proposi-

tion thoroughly established by. the decisions of

' this eourt, and these decisions also establish the

—18—

proposition that the defendant has a right to deny

that he will claim or assert the things which the

plaintiff charges he will claim, and the right to

disclaim as to all such allegations contained in

the complaint.

Robinson vs. Anderson, 121 U. 8. 522;

Florida Cent. & P. R. Co. vs. Bell, 20 Sup.

Ct. Rep. 399;

Excelsior Wooden Pipe Co. vs. Pacific

Bridge Co., 22 Sup. Ct. Rep. 681;

M. O. P. Co. vs. B. & M. Co., 93 Fed. 274;

Railroad Co. vs. Lewis, 173 U. 8. 457;

Colorado Central Con. M. Co. vs. Turck, 150

U. 8. 138.

Where the complaint does not show that a fed-

eral question is involved and necessary for a de-

cision of the case, it is equally well settled that

a defense which may be interposed by pleading

or evidence under a law of the United States will

not confer jurisdiction.

Peabody Min. Co. vs. Mining Co. 111 Fed.

817-822, and cases cited;

Pratt et al. vs. Paris Gas Light & Coke Co.,

18 Sup. Ct. Rep. 62, at 64;

And cages cited, supra,

What we have already said and the authorities

which we have already cited are sufficient to dis

—19—

pose of this case in favor of the motion to dismiss;

but we beg to call the Court’s attention to the fur-

ther propositions:

1. That the complaint and the answer thereto

raise only issues of fact and present no question

of the construction of the Constitution or laws of

the United States; and

2. That if it could be argued that any such

question was involved, it has been decided by this

Court, and after a decision of a question by this-™

Court it is no longer a federal question.

On the first proposition it would seem to be suffi-

cient to refer to the allegations of the complaint

constituting plaintiff’s cause of action, and to the

answer thereto. Whether the plaintiff is the

owner of the ground claimed by it and the de

fendant is the owner of the ground claimed by it,

is a question of fact, whether defendant’s pPosses-

sion was under a superior title or whether there

is a vein which has its apex within the defendant’s

ground and which has and can be followed down

into the plaintiffs’ ground, also presents a ques-

tion of fact, as does the location, character, extent

and direction of the veins and ore bodies, and un-

der the decision these questions of fact do not pre-

sent any federal question.

Murray vs. Blue Bird Ming. Co. Ltd., 45

Fed. 385;

—20—

Blue Bird Mng. Co., Ltd., vs. Largey, 49

Fed. 289;

Foster vs. Kansas, 112 U. 8. 201;

Dewey Ming. Co. vs. Miller, 96 Fed. 1;

California Oil & Gas. Co. vs. Miller, 96 Fed.

12, at p. 17;

Bushnell vs. Crooke M. & 8S. Co., 13 Sup. Ct.

Rep. 771, and cases cited;

Water Co. vs. Keyes, 96 U. 8. 199-203 ;

Wise vs. Nixon, 78 Fed. 203.

All questions which might possibly arise in the

trial of the case have been determined by this

Court and, therefore, even though any of such

questions might arise, they would not present fed-

eral questions or give the Circuit Court jurisdic-

tion. It is not apparent that there is, or was, any

dispute between the parties as to the law, and

therefore it is highly improbable that in the trial

of the case any questions calling for the application

of the laws of the United States would arise. We

need not discuss this phase of the case, however,

for the reason that no federal question is present-

ed by the complaint. We are not to be understood

as taking the position that the Court would have

jurisdiction if a federal question was raised by

the answer. The authorities above cited show that

it weuld not have such jurisdiction, but assum‘ng

for the sake of the argument the possibility of a

—2i~-

claim of a federal question being presented, it

could not give jurisdiction. Every question which

could possibly arise under the issues made by the

pleadings has been passed upon and determined by

this Court in the following cases, and the cases

therein cited :

Iron Silver Ming. Co. vs. Elgin, 118 U. 8.

196;

Walrath vs. Champion Ming. Co., 18 Sup.

Ct. Rep. 909;

Del Monte M. & M. Co. vs. Last Chance M.

Co., 18 Sup. Ct. Rep. 895, and cases cited.

Clark vs. Fitzgerald, 18 Sup. Ct. Rep. 941.

In questions of trespass it seems to be quite

well settled that one who enters beneath the sur-

face of the mining claim of another is prima facie

a trespasser and must justify his presence there.

He, therefore, has the burden of proof and he must

discharge it by presenting a state of facts which

will entitle him to defeat the action. Now as the

law has been declared by this Court with reference

to mining claims and the rights of the parties

whether or not he can justify will present only

questions of fact.

Tron Silwer Ming. Co. vs. Campbell, 17 Colo.

267 ;

Duggan vs. Davey, 4 Dak 110;

— , aa

Leadville Ming. Co. vs. Fitzgerald, 4 Mor-

ris Ming. Reports, 380;

Doe vs. Waterloo, 54 Fed. 935.

All questions as to the construction of the law

having been determined by this Court, no federal

question exists.

Kansas vs. Bradley, 26 Fed. 289;

Blue Bird Ming. Co. vs. Largey, 49 Fed.

289;

Foster vs. Kansas, 112 U. 8. 201.

The proper rule is that the case should be tried

in the state court and that, if during the progress

of the trial federal questions arise and are de

eided, an appeal should be prosecuted from the

atate court to the Supreme Court of the United

States; it must be presumed in the first instance

that the state court will properly declare the law

of the United States and apply it.

New Orleans vs. Benjamin, 153 U. 8. 411;

14 Sup. Ct. Rep. 905.

Upon the foregoing considerations and authori-

ties the appeal should be dismissed with costs,

and we pray the judgment of this Court that the

same be done.

IV.

ON THE MOTION TO AFFIRM AND ON THE

MERITS.

ARGUMENT AND AUTHORITIES.

Little more attention need be given to the argu-

ment and authorities of the appellant than to re

state the proposition that appellant’s brief and

argument is not founded upon or supported by the

facts in the case, and that it proceeds upon assump-

tions which have no support in the record, and

that the authorities cited have no application to

the matters sought to be presented by this appeal.

They certainly lend no support to the claim of ap-

pellant that the amended bill of complaint con-

ferred jurisdiction upon the Cireuit Court, and

that, if it did disclose any jurisdiction, the defend-

ants had no right to disclaim, or that that juris-

diction, so shown upon the face of the complaint,

could not be defeated or taken away by the answer.

We need not cite to the Court the avthorities

in support of the proposition that the jurisdiction

of the United States Court is limited, and that the

more recent statutes passed with reference to its

jerisdiction had the purpose of circumscribing and

—24—

limiting it; a reading of the decisions of this Court

to which we have already referred in support of

the motion to dismiss will disclose a construction

of these statutes as bearing upon this subject.

The argument and authorities which we have

already presented in support of the motion to dis-

miss are hereby respectfully referred to in support

of the motion to affirm, in the event the Court

shall come to a consideration of that motion, or

a determination af the merits of this appeal. They

will be found amply sufficient to justify the af-

firmance which we pray.

We may be permitted, however, to refer briefly

to some of the matters stated by appellant in ar-

gument, but if we were to refer to them in par-

ticular, it would be only a repetition of what we

have already set forth. The Court will perceive

that every allegation contained in the amended

complaint, and upon which the appellant relies

to show a federal question, has been disclaimed

by the appellees. It seems to be conceded that

the decision of the United States Circuit Court of

Apveals made upon the original complaint and re-

ported in the 85th Federal Reporter, at page 867,

was and is correct. The contention is made that

the allegations which were added to the amended

bill brought it within the suggestion made by the

Cireuit Court of Appeals in that case that there

might be a federal question involved if properly

— =

pleaded. That they did not do 80, however, is

attested by the decision of the same court, reported

in the 93rd Federal Reporter, at page 274. Of

course, appellant’s counsel say nothing in their

brief about this decision. They seem to evince an

ill-natured disposition about the case, and offer

some criticism of the answer of the appellees.

Their idea expressed in the brief seems to be that

because appellant brought this action in the

Mnited States Circuit Court,and because of that fact

alone, that Court had jurisdiction, and that the

appellees are very greatly to be blamed for having

questioned its jurisdiction and thereby preventing

the appellant from having the case tried there.

The character of the remarks indulged in by coun-

sel for appellant neither call for nor would justify

us in attempting to make a reply in kind. This

much only we will say on the subject: That if

the Circuit Court did not have jurisdiction, it cer-

tainly could not claim any authority over the par-

ties, to supervise or control their actions or con-

duct with reference to the subject-matter of the

action in a case which might be brought in the

state court. With such a case it would not and

could not have any proper concern, and it would

be a reflection upon its dignity and integrity to

assume that it would feel or manifest any interest

therein, either with reference to the character of

the complaint which might be filed, or to the de-

fenses which might be interposed thereto, or to

—26—

the result or determination which might follow.

On page 12 of the brief counsel refer to a case

decided by the Supreme Court of the State of Mion-

tana, and follows the reference by claims as to

what the Court said in such case, and as to the

argument of counsel, as though they were appeal-

ing from that decision to this Court. We must

express our inability to perceive any relevancy

of this matter, or any justification for its attempted

intrusion into this case. That it is not in the rec-

erd ought to have been a sufficient reason to per-

suade counsel from making the references.

On page 13, paragraph “d,” another reference is

made to a case said to be pending. We must dis-

claim knowledge of this case or of any justification

for its insertion in the brief.

bbl

Paragraph “e,” on said page, is also a misstate-

ment, as is likewise paragraph “f.”

The claims wiich counsel assert are made, fol-

lowing these references, are best disposed of by a

reference to the answer in the case, which shows

that counsel are altogether mistaken. The Rarus

claim, or the Rarus patent, is in nowise involved

in this case, but if it were, it would not present a

federal question. This Court would not occupy

its time with considering a question which it had

already determined, and if it did, it would not do

xo further than to affirm a judgment or decision

which was made in compliance with it.

The fact that the decision of the Circuit Court

=x =

or of the United States Circuit Court of Appeals

was made before or after the decision by this

Court could make no difference. The decision in

the case of Del Monte Mining & Milling Co. vs.

Last Chance Mining Co., 171 U. S. 55, was ren-

dered on May 23rd, 1898; the decision of the United

States Circuit Court of Appeals was made in this

case on February 13th, 1899.

The appellees did not claim to own any portion

of the grounc by virtue of the Rarus patent,

or any other rights than those conferred by

the patent frem tlc United States for that portion

of the Johnstown lode claim claimed by them.

There was no question of the construction of these

patents involved; the answer shows that the reli-

ance of the defendants was upon the rights acquir-

ed from the Johnstown patent, and confined to the

rights of the Johnstown claim as patented, and

to such rights as proceeded therefrom to the par-

cel of ground claimed by them. Neither was there

any question involving the right of a vein having

a divided apex. The defendants claimed the en-

tire apex in their portion of the ground, and set

forth a disclaimer of the claim which the plaintiff

asserted they would make with reference to a vein

crossing the side line, or being divided by the side

line. So that, taking the complaint in the first

instance, in its statement of a cause of action, it

presented no federal question, and it comes squarely

within the authorities which hold that unless the

—238—

complaint, in its statement of a cause of action,

presents a federal question, the Court has no jur-

isdiction.

The only grievance complained of is that the

defendants entered within the portion of the ground

claimed by the plaintiff and mined, took away and

converted to their own use ores and minerals

therefrom. Appellants say, on page 21 of the

brief, that it is, in effect, an action to quiet its

title. Taking this statement as correct, then the

complainant did not give the Court jurisdiction,

for the reason that the complainant did not allege

possession, and did not present any question for

the construction of a law of the United States. We

need only refer on this point to the authorities

which we have already cited, and repeat again that

this statement of the complaint could only present

questions of fact.

None of the authorities referred to in the first

division of appellant’s argument need be noticed,

except the cases of Walla Walla vs. Walla Walla

Water Co., 172 U. S. 1, and Cow vs. Gilmer, 88

Fed. 343 A reference to these cases will show

that it was necessary, in the statement of plaintiff’s

cause of action, to disclose the existence of a fed-

eral question, and that it was so disclosed. With-

out the statement from which the federal question

arose, the plaintiff’s complaint in these actions

would have been a mere blank and would not have

—29—

stated any cause of action whatever. No argu-

ment is necessary to point this out, as it appears

from the plain statements of the Court in the opin-

ions themselves. They have, however, not the

slightest application to the case here presented.

A comparison of them with the facts in this case

and with the decisions which we have cited in sup-

port of the motion to dismiss will at once dispose

of any question of their applicability here and must

inevitably lead to the conclusion that the Circuit

Court did not have jurisdiction.

A motion to affirm will be sustained if the dis

missal of the bill for want of jurisdiction was cor-

rect.

Bienville Water Supply Co. vs. Mobile, 20

Sup. Ct. Rep. 40.

The second division of appellant’s brief in the

discussion of the contention, that a federal ques-

tion being presented by the complaint cannot be

eliminated by the defendants’ answer, has been

dis posed of by the authorities which we have here-

tofore cited. Of course, no federal question was

presented by the bill of complaint in this case, but

had, there been such a question presented the an-

swer of the defendants would have divested the

case of any such question. The appellant has been

—x«

quite unhappy in the selection of cases, and in the

argument presented in this part of the brief. A

. glance at the cases cited will show their entire in-

applicability. In answer to this portion of ap-

pellant’s brief we may safely rely upon the follow-

ing authorities, which have already been cited:

California Oil & Gas Co. vs. Miller, 96 Fed.

12;

Lampasas vs. Bell, 21 Sup. Ct. Rep. 368;

Florida Cent. & P. R. Co. vs. Bell, 20 Sup.

Ct. Rep. 399;

Wise vs. Nixon, 78 Fed. 203;

M. O. P. Co. vs. B. & M. Co., 93 Fed. 274;

Bushnell vs. Crooke Ming. & Smelting Co., 13

Sup. Ct. Rep. 771;

Shoshone Ming. Co. vs. Rutter et al., 20

Sup. Ct. Rep. 726;

Blackburn vs. Portland Gold Ming. Co., 20

Sup. Ct. Rep. 222;

Eecelsior Wooden Pipe Co. vs. Pacific

Bridge Co., 22 Sup. Ct. Rep. 681;

R. R. Co. vs. Lewis, 172 U. 8. 457; 19 Sup.

Ct. Rep. 451;

Colorado Cent. Con. Ming. Co. vs. Turck,

150 U. 8. 138;

Egan vs. Hart, 17 Sup. Ct. Rep. 300;

alin

Robinson vs. Anderson, 121 U. 8. 522;

Peabody Ming. Co. vs. Mining Co., 111 Fed.

817; 822 and cases cited;

Pratt et al. vs. Paris Gaslight & Coke Co.,

18 Sup. Ct. Rep. 62, at p. 905.

In Excelsior Wooden Pipe Co. vs. Pacific Bridge

Co., supra, this Court sayeth :

“While it seems reasonable to say that a jur-

isdiction once acquired by the filing of a proper

bill ought not to be taken away by any subsequent

pleading, the statute is peremptory in this partic-

ular and requires the Court to dismiss the case

whenever at any time it shall appear that its juris-

diction has been improperly invoked. We are by

po means without authority upon this question.”

Then the Court cites and approves:

Robinson vs. Anderson, 121 U.S. 522.

No argument upon the authorities which we

have cited is necessary, as they are conclusive upon

all propositions advanced by the appellant against

the contention made by it. The appellant pre

sented the same argument as contained in its brief

to the Circuit Court of Appeals, and it received

the answer of that Court contained in its decision

reported in 93 Fed. 274.

We are entirely satisfied with that answer and

submit to this Court that it is absolutely correct.

We, therefore, respectfully submit that if this

—s2—

Court shall come to a consideration of the merits —

of this appeal it should enter its order or decree

herein affirming the decree dismissing the action.

JOHN J. McHATTON,

JOHN W. COTTER,

Attorneys for Appellees.

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