•140 But does the complaint bear the construc- | on the precise question sought to be raised, tion the company puts upon it? and in the latter case Mr. Justice Blatchford expressed the opinion that it was proper for the Federal courts to follow the decisions of the state courts that a cause of action was entire. Our conclusion is that it cannot properly be held that it appeared on the face of this pleading, as matter of law, that the cause of action was not entire, or that a separable controversy was presented. Judgment affirmed. Mr. Justice Harlan and Mr. Justice White dissented. Mr. Justice McKenna, not having heard the argument, took no part in the disposition of the case. The pleader did not set forth-and, according to the decision of the court of appeals, this was not material-the specific acts of negligence complained of. It was stated that the "negligence of the corporate defendant was done by and through its said servants and other of its servants then and there in its employment, and said negligence was the joint negligence of all the defendants." Assuming this averment to be inconsistent with a charge of direct action by the company, it may nevertheless be held to amount to a charge of concurrent action when coupled with the previous averment that Dixon was killed, while crossing the track at a turnpike crossing, by the negligence of the company and the other defendants in charge of the train. The negligence may have consisted in that the train was run at too great speed, and in that proper signals of its approach were not given; and if the speed was permitted by the company's rules, or not for- RUTH I. FYE, by Her Next Friend, Henry bidden, though dangerous, the negligence in that particular and in the omission of signals would be concurrent. Other grounds of Error to state court-failure to raise Fedconcurring negligence may be imagined. And where concurrent negligence is charged the controversy is not separable. *In Whitcomb v. Smithson, 175 U. S. 635, 44 L. ed. 303, 20 Sup. Ct. Rep. 248, the action was brought in the state court against one railway company and the receivers of another to recover for personal injuries Inflicted by concurrent negligence. The cause was removed to the circuit court and remanded because there was no separable controver sy. (179 U. S. 127) CHARLES A. CHAPIN, Piff. in Err., บ. W. Fye. eral question in court below. A constitutional question which will give Jurisdiction to the Supreme Court of the United States on writ of error to a state court is not raised by a contention in the state court that the state law in question violates the 5th and 7th Amendments of the Federal Constitution, and a contention, made in the assignment of errors in the Supreme Court of the United States, that the law violates the 14th Amendment, since the constitutional question must be raised in the state court, and the reference to the 5th and 7th Amendments is insufficient for that purpose because those amendments have no application to the powers of the state. At the close of the evidence on the subsequent trial the company moved that the jury be instructed to return a verdict in its favor, which was resisted by plaintiff, but granted by the court, and a verdict returned accordingly. The other defendants, the receivers, then applied for a removal, which was denied. We held the ruling in favor of Submitted October 29, 1900. Decided Nothe company was a ruling on the merits, and not a ruling on the question of jurisdiction, and sustained the action of the state courts. [No. 182.] vember 19, 1900. Chicago, R. I. & P. R. Co. v. Martin, 178 ERROR to the Circuit Court of Kalamazoo County, State of Michigan, to review a U. S. 245, 44 L. ed. 1055, 20 Sup. Ct. Rep. decision sustaining the constitutionality of 854, is another case in which an action for a state statute. On motions to dismiss or concurrent negligence was held not to pre-affirm. Dismissed. sent a separable controversy. In Powers v. Chesapeake & O. R. Co., where the company and its employees had been jointly sued as in the case at bar, the case had been remanded on removal for want of separable controversy. Plaintiff subsequently discontinued the action as to all the defendants, except the company, and the company again made application to remove. This was denied by the state court, but granted by the circuit court, and the judgment of the latter was affirmed by this court, the question of separable controversy being necessarily not passed on here. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264. Plymouth Gold Min. Co. v. Amador & S. Canal Co. 118 U. S. 264, 30 L. ed. 232,6 Sup. Ct. Rep. 1034, and Connell v. Utica, U. & E. R. Co. 13 Fed. Rep. 241, are more in point See same case in supreme court of Michigan, 80 N. W. 797. The facts are stated in the opinion. "Mr. Chief Justice Fuller delivered the opinion of the court: This was an action of trespass on the case to recover for personal injuries inflicted on Ruth I. Fye by a dog owned and kept by Chapin, and was based on a statute of the state of Michigan, approved March 28, 1850, which provided that the owner or keeper of any dog injuring any person as set forth should be liable to the person injured "in double the amount of damages sustained, to *128 $129 be recovered in an action of trespass or on the case;" and also that "if it shall appear to the satisfaction of the court, by the evidence, that the defendant is justly liable for the damages complained of under the provisions of this act, the court shall render judgment against such defendant for double the amount of damages proved and costs of suit." brief of counsel in that court which, it was said, asserted the statute to be in contravention of the 14th Amendment. Motions to dismiss or affirm were submitted. The declaration counted on the statute, and asked to have plaintiff's damages doubled by virtue thereof; and the trial having resulted in a verdict of $10,000 in plaintiff's favor, the circuit court, on motion of her counsel, entered judgment for double the amount, namely, $20,000. Defendant moved for a new trial, and assigned, among various grounds therefor, that the statute in ques-declare. In this case plaintiff, after judg tion was unconstitutional because in violation of the Constitution of Michigan, and "in violation of the constitutional rights of citizens to have public trial in civil cases in courts of record." The motion for new trial was denied, and defendant filed twenty-two exceptions, the eighteenth and nineteenth of which were that the statute was in violation of the 5th and 7th Amendments to the Constitution of the United States. The case was then carried to the supreme court of the state, and ninety-eight errors were assigned, the ninety-fourth, ninety-fifth, and ninetysixth being to the effect that the statute was inconsistent with the ordinance of 1787 for the government of the Northwest Territory, and with the 5th and 6th Amendments, securing due process of law and the right of trial by jury. The supreme court required plaintiff to remit $10,000, and, this being done, affirmed the judgment, as so modified, for $10,000. As to the contention that the act was unconstitutional "in that it confers upon the circuit judge power to act as a chancellor in a suit at law in so far as he exercises the authority to double the damages," the supreme court, without referring to the Federal Constitution, held that it was competent for the legislature to provide for doubling damages in this class of cases, and that the latter portion of the section should be construed to mean that the court, acting through all of its instrumentalities, which included the jury, should ascertain the damages as in ordinary cases, and that, as so construed, the act was valid. 80 N. W. 797. This writ of error was then allowed, and errors assigned in this court, embracing alleged errors committed by the supreme court in disregarding certain paragraphs of the The validity of the provision creating the liability for double damages is not denied, but the contention seems to be that the statute authorizes the trial judge to determine independently "the amount of the damages proved," and is therefore unconstitutional. But this need not be discussed, as we think the writ must be dismissed for want of jurisdiction. If a party to an action in a state court intends to invoke for the protection of his rights the Constitution of the United States, or some treaty, statute, commission, or authority of the United States, he must so ment, excepted to the denial of his motion for a new trial on the ground, among others, that the statute in question was in viola tion of the 5th and 7th Amendments to the Constitution, and repeated that contention in the assignment of errors in the supreme court, adding also that the statute was inconsistent with the ordinance of 1787. the ordinance of 1787 was superseded by the adoption of the Constitution of the United States, and of the state, and the 5th and 7th Amendments were intended to operate solely on the Federal government, and contain_no restrictions on the powers of the state. The only reference to the 14th Amendment is in the assignment of errors in this court, where it is stated that the state supreme court disregarded certain portions of counsel's brief alleged to have treated of that subject. This did not meet the requirements of § 709 of the Revised Statutes. Zadig v. Baldwin, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639; Miller v. Cornwall R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Dewey v. Des Moines, 173 U. S. 198, 43 L. ed. 666, 19 Sup. Ct. Rep. 379; Keokuk & H. Bridge Co. v. Illinois. 175 U. S. 633, 44 L. ed. 302, 20 Sup. Ct. Rep. 205. Writ of error dismissed. Mr. Justice Brown dissenting: But☎ It appears in this case that defendant intended to claim the benefit of the "due proc ess of law" clause of the 14th Amendment, but inadvertently pitched his claim upon the 5th Amendment, which also contains a similar clause, but is only applicable to proceedings in the Federal courts. The mistake is so obvious I think the court should have disregarded it, and passed upon the merits. (179 U. S. 223) FRED STEARNS, as County Auditor of | paired the obligation of a contract making an Aitkin County, Minnesota, Piff. in Err., exemption from taxation. Reversed. v. STATE OF MINNESOTA on the Relation of JAMES N. MARR. Error to state court-independent judgment as to Federal question impairing obliga tion of contract-exempting from taxa tion-reserved power to alter, amend, or repeal attempt to continue obligation while denying protection of contractstate as trustee of lands granted to railroads-taxation as affecting trust. See same case below, 72 Minn. 200, 75 N. W. 210. Statement by Mr. Justice Brewer: This case comes on error to the supreme court of the state of Minnesota, is brought here at the instance of certain railroad companies, and involves the question whether the real estate belonging to them, and not used in the operation of their roads, is subject to taxation according to its value, or is excepted from such ordinary rule of taxation by virtue of a contract alleged to have been 1. The competency of a state, through its leg-made many years ago by legislation of the islation, to make an alleged contract, and the meaning and validity of such contract, are matters which the Supreme Court of the United States, on writ of error to a state court, must determine for itself by an inde pendent judgment, as an exception to the general rule that it will accept the decision of the state supreme court on the construction of the state Constitution, though in determining the matter it may lean towards the interpretation placed thereon by the state court. 2. The power to alter, amend, or repeal by vote of the people a statute exempting a railroad company from all other taxes on payment of a percentage of its gross earnings, which is reserved by the Minnesota constitutional amendment of 1871 (Minn. Laws 1871, p. 41), cannot be exercised so as to continue in full the obligation as to payment of the percentage of gross earnings, and at the same time deny to the company, either in whole or in part, the exemption conferred by the contract. 8. Contracts between the state of Minnesota and railroad companies, made by acts of February 23, 1865 (Minn. S. P. Laws 1865, chap. 2, p. 19), and March 4, 1870 (Minn. S. P. Laws 1870, p. 338), whereby the state exempted the companies from all other taxes until a sale or lease of the lands, or sale of stumpage thereon, in consideration of a percentage on the gross earnings, were not in violation of the provisions of Minn. Const. art. 9, § 1, 3, requiring all property to be taxed at its true value in money, since these contracts were made by the state as a trustee of the public lands granted to it in aid of railroads, or which were granted to the corporations by Congress subject to the consent of the state, and, as the state had accepted the property as a trustee, It was not compelled to weaken the full accomplishment of that trust by subjecting the lands to taxation, If, in its judgment as trustee, the trust could be most effectually accomplished by transferring the lands subject to a limited taxation until such time as the full value of the lands could be secured for the purposes of the trust. [Per Mr. Justice Brewer.] [No. 20.] Argued January 16, 17, 1900. Ordered for reargument, April 23, 1900. Reargued October 16, 17, 1900. Decided December 8, 1900. 'N ERROR to the Supreme Court of Min state, to the effect that railroad companies should pay a certain per cent on their gross earnings in lieu of taxes on all their prop erty. The facts are as follows, and first as to lands belonging to the St. Paul & Duluth Company: *The Constitution of Minnesota, adopted in 1858, has always contained these provisions (article 9, §§ 1 and 3): "Sec. 1. All taxes to be raised in this state shall be as nearly equal as may be, and all shall have a cash valuation, and be equalized property on which taxes are to be levied and uniform throughout the state." "Sec. 3. Laws shall be passed taxing all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, and also all real and personal property according to its true value in money; but public burying grounds, public schoolhouses, public hospitals, academies, colleges, universities, and all seminaries of learning, all churches, church property used for religious purposes, and houses of worship, institutions of purely public charity, public property used exclusively for any public purpose, and personal property to an amount not exceeding in value two hundred dollars for each individual, shall, by general laws, be exempt from taxa tion." On May 23, 1857, by the territorial leg. islature of Minnesota the Nebraska & Lake Superior Railroad Company was organized. Minn. Laws 1857, chap. 93, p. 323. By an act of the state legislature, of date March 8, 1861, the name of this company was changed to the Lake Superior & Mississippi Railroad Company. Minn. Laws 1861, p. 201. By this act certain of the swamp lands granted to the state by the act of Congress of September 28, 1850 (9 Stat. at L. 519, chap. 84), were granted to that company to aid in the construction of its railroad. The St. Paul & Duluth company is the successor in interest of that company, and has succeeded to all its rights, privileges, immunities, and property. By act of Congress of date May 5, 1864 (13 Stat. at L. 64, chap. 79), as amended July 13, 1866 (14 Stat. at L 93, chap. 178), lands were granted to the state of Minnesota to aid in building a railroad from the city of St. Paul to the head of Lake Superior. The first section declarthere is hereby, granted to the state of Min Inesota to review a decision sustaining a ing the grant reads: "That there be, and statute against the contention that it im *224 ⚫226 *225 nesota for the purpose of aiding in the construction of a railroad in such state from the city of St. Paul to the head of Lake Superior, every alternate section of public land," etc. Section 5 reads: "That the said lands, hereby granted, when patented to said state, shall be subject to the disposal of said state for the purposes aforesaid, and for no other; and the said railroad shall be and remain a public highway for the use of the government of the United States, free from all toll or other charge, for the transportation of any property or troops of the United States." On February 23, 1865, the legislature of Minnesota passed an act accepting the grant, and transferring the lands to the predecessor of the St. Paul & Duluth Railroad Company. Minn. Special Laws 1865, chap. 2, p. 19. The 1st section, after accepting the lands granted, reads: "And the same are hereby granted, vested in, and transferred to the Lake Superior & Mississippi Railroad Company, its successors and assigns, to be held, used, or sold and disposed of by said railroad company, to aid in the construction of a railroad, as contemplated and provided by said act of Congress, and for the equipment and operation of the same, and for no other purpose whatever, the same to be held, used, and disposed of upon and subject to the conditions in said act of Congress provided, and upon the conditions in this act contained. That in consideration of lands granted by this act, and of the lands, rights, privileges, and franchises which have heretofore been granted to said railroad company, the said company shall, on or before the 1st day of March of each and every year after said railroad is completed and in operation, pay into the treasury of the state 3 per cent on the gross earnings of said railroad, which sum shall be in lieu and in full of all taxation and assessments upon the said railroad, its appurtenances and appendages, and all other property of said company, real, personal and mixed, including the lands hereby and heretofore granted to said company, or so intended to be granted. Provided, however, that the lands hereby and heretofore granted to said company shall be subject to like lands of individuals, to be taxed as fast as the same are sold or conveyed, or contract ed to be sold, or are leased by said company, or the stumpage upon any lands is sold or contracted to be sold by said company; but no mortgage or trust deed executed by said company upon said lands shall, for the purpose of taxation, be construed as such sale, conveyance, lease, or contract of sale." Eight days thereafter, and on March 3, 1865, an act amendatory of this act was passed. Special Laws 1865, chap. 8, p. 45. The 1st section of this act is as follows: "1. That whenever any lands heretofore or hereafter granted to the Lake Superior & Mississippi Railroad Company to aid in the construction or completion of its road or branches shall be contracted to be sold, conveyed, or leased by said company, the same shall be placed upon the tax list by the proper officer for taxation as other real es tate for the year succeeding that in which such contract for a sale, conveyance, or lease thereof shall have been made, but, in enforcing a collection of the taxes thereon, the title or interest of the said company or of any trustee or mortgagee thereof shall be in nowise impaired or affected thereby, but the improvements thereon and all the interest of the purchaser or lessee therein may and shall in case of default in the payment of taxes upon such land, be sold to satisfy the same, and it shall be the duty of the proper officers to assess and collect such taxes in accordance with the general laws relating to the assessment and collection of taxes, and that the provisions of the several acts in relation to the taxation of the lands of said company, so far as the mode of taxing such lands conflict with the provisions of this act, shall be and they are repealed. Provided, that said company shall, during the first three years after 30 miles of said railroad shall be completed and in operation, on or before the 1st day of March in each and every year, pay into the treasury of the state 1 per cent on the gross earnings of said railroad, the first payment to be made on the 1st day of March next after 30 miles of said rail. road shall be completed and in operation, and shall, during the seven years next ensuing after the expiration of the three years aforesaid, pay into the treasury of this state on or before the 1st day of March of each and every year, 2 per cent of the gross earnings of said railroad, and shall, from and after the expiration of said seven years, on or before the 1st day of March of each and every year, pay into the treasury of this state 3 per cent of the gross earnings of said railroad; and the payment of such per centum annually, as aforesaid, shall be and is in full of all taxation and assessment whatever." *The 2d section provided for acceptance of the provisions of the act by the railroad company; that when accepted "the same shall become obligatory upon the state and upon said company;" and they were accepted. Thereafter, as admitted, the railroad was constructed by the company "in reliance upon said act." Taxes were paid by the railroad company on its property in accordance with the terms of this alleged contract until 1895, and during those years the state made no attempt to levy any taxes upon these lands. In 1871 the following amendment to the state Constitution was by vote of the people duly adopted (Minn. Laws 1871, p. 41): "Any law providing for the repeal or amendment of any law or laws heretofore or hereafter enacted, which provides that any railroad company now existing in this state or operating its road therein, or which may be hereafter organized, shall, in lieu of all other taxes and assessments upon their real estate, roads, rolling stock, and other personal property at and during the time and periods therein specified, pay into the treas ury of this state a certain per centum therein mentioned of the gross earnings of such railroad companies now existing or hereaft #227 *228 er organized, shall, before the same shall take effect or be in force, be submitted to a vote of the people of the state, and be adopted and ratified by a majority of the electors of the state voting at the election at which the same shall be submitted to them." In November, 1896, this statute passed in 1895 (Laws 1895, p. 378), was adopted by the people: "Sec. 1. All lands in this state heretofore or hereafter granted by the state of Minnesota or the United States or the territory of Minnesota to any railroad company shall be assessed and taxed as other lands are taxed in this state, except such parts of said lands as are held, used, or occupied for right of way, gravel pits, side tracks, depots, and all buildings and structures which are necessarily used in the actual management and operation of the railroads of said companies. Provided, that said railroad companies shall continue to pay taxes into the state treasury upon their gross earnings in the same manner and in the same amount as is now provided by law, and that nothing in this act contained shall be construed to repeal said laws, except in so far as the same relate to the tax upon said lands. sent of the legislature of any state through which, in the operation of its road, it might pass previous to commencing work. Such consent was obtained from Minnesota by an act of the legislature of that state, approved March 2, 1865. Laws 1865, p. 228. On March 4, 1870, the legislature of Minnesota passed an act (Minn. Special Laws 1870, p. 338), the 1st and 2d sections of which are as follows: "Sec. 1. That the lands, franchises, property, stock, and capital of the Northern Pacific Railroad Company shall be liable to assessment and taxation at the same rate and in the same manner, and not otherwise, and shall be exempt from assessment and taxation to the same extent and upon the same terms and conditions as the lands, property, and franchises of the Lake Superior & Mississippi Railroad Company, as is provided in and by an act entitled ‘An Act in Relation to the Taxation of Lands Granted to the Lake Superior & Mississippi Railroad Company, approved March third, eighteen hundred and sixty-five. Provided, however, That the gross earnings of said railroad company on which a percentage is to be paid to the state shall include only the earnings of that portion of the Northern Pacific Railroad constructed and operated by said company within the limits of this state. "Sec. 2. Such portion or portions of any act or acts, general or special, of the state or territory of Minnesota heretofore enacted which provides or attempts to provide for "Sec. 2. That said Northern Pacific Railany exemption of lands hereby declared tax-road Company shall have the right and auable, from taxation, or for any other method thority to acquire and hold lands for right of taxing said last-mentioned lands different of way, depot grounds, and for all necessary from the method of taxing other lands in this purposes of said company in all respects as state, or which are in any manner inconsist-provided by the general laws of this state, ent with the provisions of this act, are hereby repealed. as set forth in sections numbered consecutively thirteen to twenty-seven, inclusive, of chapter thirty-four, title one, of general statutes now in force. But where said company proceeds to condemn private property in more than one county in the same proceed. "Sec. 3. If this act shall be held to be void so far as it applies to the land of any particular railroad company in this state, it shall not be ground for declaring it void or inapplicable to any other company not sim-ings, the commissioners to be appointed ilarly situated." Under these provisions the state proceeded to levy taxes upon the lands of the St. Paul & Duluth company, and the validity of such taxation is the question involved. Lands belonging to the Northern Pacific Railway Company are also involved in this litigation, and the facts in reference to those lands are these: On July 2, 1864, the Northern Pacific Railroad Company was chartered by an act of Congress to build a railroad from Lake Superior to the Pacific, and received a grant of public lands to aid in the construction thereof. The lands thus granted are those in respect to which the question of taxability arises. 13 Stat. at L. 365, chap. 217. By § 17 of that act the company was authorized to accept "any grant, donation, loan, power, franchise, aid, or assistance which may be granted to or conferred upon said company by the Congress of the United States, by the legislature of any state, or by any corporation, person, or persons; and said corporation is authorized to hold and enjoy any such grant, donation, loan, power, franchise, aid, or assistance, to its own use, for the purpose aforesaid." By 18 it was required to obtain the con shall be residents of the county where the property to be taken is situated, or of the county to which such county is attached for judicial purposes. And there is hereby granted to the Northern Pacific Railroad Company the right of way through and over any lands of this state to the same extent as is granted by act of Congress through and over the public lands to said company." This act was duly accepted by the Northern Pacific Railroad Company. Thereafter its road was constructed, and up to the act of 1895, supra, taxes were levied and paid in the manner prescribed. The validity of taxes levied upon the lands of this company since the act of 1895, and under the authority of that act, is challenged, and becomes in this litigation one of the questions involved. Lands belonging to the Great Northern Railway Company were also involved in the litigation in the state courts, but that company is not here making any contention for a reversal of the judgment of the state su. preme court. After the act of 1895, approved by the vote of the people, proceedings were instituted to enforce the levy of taxes on the lands of these railroad companies, and the proceed. |