apparently was about the right of a Boom Com- Submitted Dec. 10, 1883. Decided Jan. 7, 1884. fore the body politic shall be bound by an in- As to the objection that the duties of the auditor, in respect to his inquiries under the 4th section, are judicial rather than executive, it is sufficient to say that every executive officer, when called on to act in his official capacity, must enquire and determine whether, on the facts, the law requires him to do one thing or another. The due execution of these bonds was an executive act, and the Auditor of State was made by law one of the executive officers whose duty it was to take part in their execution. The inquiries he is required to make do not differ in their character from those the presiding justice of the county court should have made when he affixed his signature. The certificate of the auditor being according to the statute prima facie evidence only of the facts stated, amounts to nothing more than that in his opinion the circumstances are such that the bonds may properly go out as commercial paper of the kind they appear on their face to be. It binds no one. It simply states the opinion of this executive officer on the questions he was called on to consider in his official capacity. It makes the bond complete in the form of its execution and in law does nothing more. IN ERROR to the Supreme Court of Pennsyl vania. The history and facts of the case sufficiently appear in the opinion of the court. On motion to dismiss because no federal question is involved. Messrs. Seymour D. Ball and William A. McKenney, for defendant in error, in support of motion. Messrs. William A. Wallace and Joseph Mr. Chief Justice Waite delivered the opinion of the court: The Susquehanna Boom Company was incorporated by the General Assembly of Pennsylvania on the 26th of March, 1846, and as early as 1849 erected, under its charter, a boom in the West Branch of the Susquehanna River, at Williamsport, for the purpose of securing logs and other lumber floating in the river. Its charter did not purport to confer upon it any exclusive rights to the use of the river above the boom for bringing logs down. On the 26th of March, 1849, the West Branch Boom Company was incorporated to construct and maintain a boom on the south side of the West Branch at Lock Haven, about twenty-five miles_above Williamsport. Under its charter this Company was not allowed to extend its boom more than half way across the river, but it could erect such piers, side branches or sheer booms as might be necessary. With this authority a sheer boom was constructed in the north half of the stream. This suit was begun in a state court of Pennsylvania to enjoin the West Branch Company from maintaining such a sheer boom, on the ground that under its charter no such structure could be placed by it on the north side of the branch. The Supreme Court of the State, on appeal, decided that it could put in and maintain such a sheer boom, and adjudged accordingly. To reverse that judgment, this writ of error was brought. The West Branch Company now moves to dismiss the writ because no federal question is involved. SUSQUEHANNA BOOM COMPANY, It is clear to our minds that we have no jurisBROWN, CHARLES HIBBARD ET AL.,diction. The Constitution protects state corPiffs. in Err., We are of opinion that this case is in no respect distinguishable from Anthony v. Jasper Co., and upon that authority the judgment is affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. 0. WEST BRANCH BOOM COMPANY. (See S. C., Reporter's ed., 57-59.) H. porations in such contracts with the State as their charters imply. The Susquehanna Company, whose rights are involved, was given full authority to erect and maintain its boom at Federal question, what is-state judgments, when Williamsport. That, undoubtedly, implied the reviewed what constitutes the record. 1. Where the only controversy in the state court NOTE-Jurisdiction of U. S. Supreme Court where federal question arises, or where is drawn in question statute, treaty or Constitution of U. S. See, note to Matthews v. Zane, 8 U. S. (4 Cranch), 382; note to Martin v. Hunter, 14 U. S. (1 Wheat.), 304; and note to Williams v. Norris, 25 U. S. (12 Wheat.), 117. right to use the river as others used it for bringing logs to the boom. The West Branch Company was also authorized to construct its boom in the south half of the river at Lock Haven. Whether it could under its charter put a sheer boom in the north half seems to have been a question with the Susquehanna Company, and this suit was brought to have that question set tled. That is clearly all there was in the case | 5 of the Act of March 3, 1875, ch. 137, 18 Stat. up to the time of the final decision in the Su- at L., 470, to review an order of the circuit preme Court, whose judgment we are now court remanding a cause which had been recalled on to review. There is nowhere, either moved from a state court. The facts are as folin the pleadings, the evidence or the sugges-lows: tions of counsel, prior to the judgment, so far as we have been able to discover, even an intimation that the Susquehanna Company claimed any contract right under its charter to exclude the West Branch Company from such use as that Company was making of the north half of the stream. The only controversy apparently was about the right of the West Branch Company, under its charter, to such use at all. Certainly," as was said in Brown v. Colorado, 106 U. S., 97 [XXVII., 132], "if the judgment of the courts of the States are to be reviewed here on such," that is to say, federal, "questions, it should only be when it appears unmistakably that the court either knew or ought to have known that such a question was involved in the decision to be made.' The fact that on a petition for rehearing it was suggested that if the charter of the West Branch Company was so construed as to give it the right to maintain its sheer boom in the north half of the stream, that charter would impair the obligation of the contract of the State with the Susquehanna Company, is unimportant here, because our jurisdiction extends only to a review of the judgment as it stands in the record. We act on the case as made to the court below when the judgment was rendered, and cannot incorporate into the record any new matter which appears for the first time after the judgment on a petition for rehearing. Such a petition is no part of the record on which the judgment rests. The motion to dismiss is granted. The suit was begun in the state court on the 19th of July, 1879, by Chambers, as plaintiff, against C. M. Swope and Joseph B. Holland, defendants, to recover damages for writing and publishing an alleged libel. An answer was filed by Holland on the 6th of October, 1879, and an amended answer on January 24, 1880. A reply was filed February 5. At the April Term, 1880, a trial was had, which resulted in a verdict and judgment for $20,000 in favor of Chambers. This judgment was afterwards set aside by the court and a new trial granted. On the 20th of January, 1882, Holland petitioned for the removal of the suit as against him to the Circuit Court of the United States for the Eastern District of Missouri. The petition set forth that Holland was a citizen of Illinois, and both Swope and Chambers citizens of Missouri; "That said suit is one in which there can be a final determination of the controversy, so far as it concerns your petitioner, without the presence of the said defendant Swope as a party in said cause, and that your petitioner desires to remove said suit as against your petitioner, and so far as concerns him, into the circuit court * in pursuance of the Act of Congress in that behalf provided, to wit: the Revised Statutes of the United States, section 639, subdivision second." * Upon these facts the order of the circuit court remanding the cause was clearly right. The second subdivision of section 639 was repealed by the Act of March 3, 1875, ch. 137. That was settled in Hyde v. Ruble, 104 U.S.,407 [XXVI., 823], and King v. Cornell, 106 U.S.,395 [XXVII., James H. McKenney, Clerk Sup. Court, U. S. 60]. JOSEPH B. HOLLAND, Piff. in Err., v. JAMES H. CHAMBERS. (See S. C., Reporter's ed., 59–61.) Removal of causes. The second subdivision of section 639, R. S., was repealed by the Act of 1875, under which the petition for removal must be filed in the State Court before or at the term at which the cause could be first tried. [No. 530.] Submitted Dec. 17, 1883. Decided Jan. 7, 1884. Under the Act of 1875 the petition for re moval must be filed in the state court before or The order remanding the cause is affirmed. James H. McKenney, Clerk, Sup. Court, U. S. IN ERROR to the Circuit Court of the United AMERICAN BIBLE SOCIETY, AND MIS States for the Eastern District of Missouri. On motion to dismiss. The history and facts of the case appear in the opinion of the court. Messrs. J. O. Broadhead and Fillmore Beall, for defendant in error in support of motion. Messrs. S. M. Smith and J. R. Sypher, for plaintiff in error, contra. SIONARY SOCIETY OF THE METHO- v. MARY PRICE. (See S. C., Reporter's ed., 61-63.) Removal of causes-executors when necessary parties. Mr. Chief Justice Waite delivered the opin-vision of section 639, R. S. of U.S., unless all the par 1. A suit cannot be removed under the 3d subdi· ties on one side of the controversy are citizens of This is a writ of error brought under section different States from those on the other. ion of the court; 2. Where executors are necessary defendants in a | and citizens of the same State with the comsuit and citizens of the same State with the com- plainant. To reverse that order this appeal was plainant, the suit cannot be removed. Where executors are trustees under a will, they are necessary parties to a suit to set it aside. [No. 709.] taken. That a suit cannot be removed under the 3d subdivision of section 639, unless all the parties different States from those on the other, was Submitted Dec. 14, 1883. Decided Jan. 7, 1884. on one side of the controversy are citizens of APPEAL from the Circuit Court of the United States for the Southern District of Illinois. The history and facts of the case sufficiently appear in the opinion of the court. Mr. George P. Strong, for appellants. Messrs. Gustavus Koerner and W. M. Springer, for appellee. Mr. Chief Justice Waite delivered the opinion of the court: This is an appeal from an order remanding a cause which had been removed from a State court. The case is as follows: Isaac Foreman, a citizen of Illinois, died on the 28th of October, 1878, leaving a will by which, after devising certain property to his wife, Rebecca Foreman, for life, he appointed John J. Thomas, Frederick H. Pieper and Theophilus Harrison, all citizens of Illinois, his executors. After directing his executors to convert all his property into money, he proceeded as follows: "4th. After the payment of all my just debts, I give and bequeath to my said executors the sum of two thousand dollars ($2,000) in trust for the use and benefit of my daughter, Mary Price, during her natural life. I desire my said executors to safely loan on interest said sum of money and pay to my said daughter the interest or profits thereof annually during her life, and after her death the proceeds or interest thereof to be paid annually for the maintenance and education of her child or children, and such principal sum to be paid to her child or children when he, she, or they become of age. And should my said daughter die leaving no child or children, or should all of them die before coming of age, then the said sum of two thousand dollars shall be payable by my said executors, two thirds thereof to the American Bible Society, and one third thereof to the Missionary Society of the Methodist Episcopal Church of the United States of America." All the residue settled in the cases of the Sewing Machine Companies, 18 Wall. 587 [85 U. S., XXI, 922], and Vannevar v. Bryant, 21 Wall., 43 [88 U. S., XXII., 477], and that the executors were necessary parties we have no doubt. The sum of $2,000 was specifically bequeathed to them in trust for the complainant, Mrs. Price, during her life, and after her death for her children; or, in case of their death before coming of age, for the two Societies. The interest of the children is left entirely to the protection of the executors, and is not represented either by the mother, who is complainant; or by the Societies, who are defendants. If the children had united with the mother in contesting the will, the case might have been different; but they have not done so, and their interests must be treated accordingly. Without, therefore, deciding any of the other questions which have been argued, or might be suggested, the order remanding the case is affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. Cited-112 U. S., 720. FREDERICK T. FRELINGHUYSEN, Secretary of State, Plff. in Err., v. UNITED STATES, ex rel. JOHN J. KEY. UNITED STATES, ex rel. LA ABRA SILVER MINING COMPANY, Plff. in Err., v. FREDERICK T. FRELINGHUYSEN, Secretary of State. (See S. C., Reporter's ed., 63-76.) when may be withheld. of the proceeds of his property were to be paid Mexican claims-retrial of-payments of claims, over to the two societies in the same proportions. This suit was begun by Mary Price, a citizen of Illinois, the daughter, on the 19th of November, 1878, to set aside the will on the ground that the testator was of unsound mind when it was made. The widow, the executors and the two Societies, were all made defendants. A joint answer was filed by all the defendants on the 14th of January, 1879. On the 21st of September, 1880, the widow filed a separate answer in which she set forth her election to renounce the will, and take her dower and legal share of the estate of her husband. She, therefore, disclaimed all interest in the controversy. Thereupon the two Societies filed a petition for the removal of the suit to the Circuit Court of the United States for the Southern District of Illinois, under the 3d subdivision of section 639 of the Revised Statutes; on account of "prejudice and local influence." When the case got to the circuit court it was remanded on the ground that the executors were necessary defendants 1. Under the Convention between the United States and Mexico, of July 4, 1868, providing for the adjustment of the claims of citizens of either country against the other, the awards are final and conuntil set aside by agreement between the two Govclusive as between the United States and Mexico, ernments or otherwise. 2. The United States may treat with Mexico for a retrial of particular awards because of the alleged fraudulent character of the proof given in their support, and the President and Senate may conclude another Treaty with Mexico in respect to any claims allowed by the commission. 3. When the President has negotiated a new Treaty for such a re-examination of the claims, and submitted it to the Senate for ratification, he may withhold all further payments to the claimants until the diplomatic negotiations between the two Governments on the subject are finally concluded. [Nos. 891, 995.] Argued Dec. 3, 4, 1883. Decided Jan. 7, 1884. IN ERROR to the Supreme Court of the Dis trict Columbia. The history and facts of the case fully appear in the opinion of the court. Messrs. B. F. Brewster, Atty-Gen., and S. F. Phillips, Solicitor-Gen., for the Secretary of State. Messrs. P. Phillips, John Goode, W. Hallett Phillips and R. B. Warden, for Key. Messrs. Frederick P. Stanton, S. Shellabarger, J. M. Wilson and T. W. Bartley, for La Abra Silver Mining Company. Mr. Chief Justice Waite delivered the opinion of the court: The facts on which these cases depend are as follows: Art. IV. "When decisions shall have been made by the commissioners and the arbiter in every case which shall have been laid before them, the total amount awarded in all the cases decided in favor of the citizens of the one party shall be deducted from the total amount awarded to the citizens of the other party, and the balance to the amount of $300,000, shall be paid at the City of Mexico or at the City of Washington, * within twelve months from the close of the commission, to the Government in favor of whose citizens the greater amount may have been awarded, without interest. * * The residue of the said balance shall be paid in annual installments to an amount not exceeding $300,000 * in any one year until the whole shall have been paid." * * * * * On the 4th of July, 1868, a Convention between the United States and the Republic of Mexico, providing for the adjustment of the claims of citizens of either country against the other, was concluded; and, on first of February, 1869, proclaimed by the President of the United States, by and with the advice and consent of the Senate. By this Convention (art. I.) "All claims on the part of corporations, companies or private individuals, citizens of the United States, upon the Government of the Mexican Republic, arising from injuries to their persons or property by authorities of the Mexican Republic, and all claims on the part of cor- Art. V. "The high contracting parties agree porations, companies or private individuals, cit- to consider the result of the proceedings of this izens of the Mexican Republic, upon the Gov-commission as a full, perfect and final settleernment of the United States, arising from injuries to their persons or property by authorities of the United States, which may have been presented to either Government for its interposition with the other since the signature of the Treaty of Guadalupe Hidalgo * * * * ment of every claim upon either Government arising out of any transaction of a date prior to the exchange of the ratification of the present convention; and further engage that every such claim, whether or not the same may have been presented to the notice of, made, preferred or laid before the said commission, shall, from and after the conclusion of the proceedings of the said commission, be considered and treated as finally settled, barred and thenceforth inadmissible." 15 Stat. at L., 679. their duties. Benjamin Weil and the La Abra Silver Mining Company; citizens of the United States, presented to their Government certain claims against Mexico. These claims were referred to the commissioners and finally resulted in an award, on the first of October, 1875, in favor of Weil and against Mexico for $489,810.68, and on the 27th of December, 1875, in favor of La Abra Silver Mining Company for $683,041.32. On the adjustment of balances under the provisions of Article IV. of the Convention, it was found that the awards against Mexico exceeded largely those against the United States, and the Government of Mexico has promptly and in good faith met its annual payments, though it seems from the beginning to have desired a re-examination of the Weil and La Abra claims. and which remain unsettled, as well as any other such claims which may be presented within" a specified time were "To be referred to two commissioners, one to be appointed by the President of the United States, by and with the advice and consent of the Senate, and one by the Under this Convention, commissioners were President of the Mexican Republic." Provis-appointed who entered on the performance of ion was then made for the appointment of an umpire. Articles II., IV. and V., are as follows: Art. II. "The commissioners shall then conjointly proceed to the investigation and decision of the claims which shall be presented to their notice * but upon such evidence or information only as shall be furnished by or on behalf of their respective Governments. They shall be bound to receive and peruse all written documents or statements which may be presented to them by or on behalf of their respective Governments, in support of or in answer to any claim; and to hear, if required, one person on each side on behalf of each Government on each and every separate claim. Should they fail to agree in opinion upon any individual claim, they shall call to their assistance the umpire* ; and such umpire, after having examined the evidence adduced for and against the claim, and after having heard, if required, one person on each side as aforesaid, and consulted with the commissioners, shall decide Sec. 1. "That the Secretary of State be and thereupon finally and without appeal. * * *he is hereby authorized and required to receive It shall be competent for each Government to any and all moneys which may be paid by the name one person to attend the commissioners as Mexican Republic under and in pursuance of agent on its behalf, to present and support the Convention between the United States and claims on its behalf, and to answer claims made the Mexican Republic for the adjustment of upon it, and to represent it generally in all mat- claims; * * * and whenever and as often ters connected with the investigation and de- as any installments shall have been paid by the cision thereof. The President of the United Mexican Republic on account of said awards, States * * and the President of the Mex- to distribute the moneys so received in ratable * * * On the 18th of June, 1878, Congress passed an Act, ch. 262, 20 Stat. at L., 144, secs. 1 and 5, of which are as follows: proportions among the corporations, companies | the doubts which have been fairly raised upon or private individuals respectively in whose fa- the representations of Mexico, the honor of the vor awards have been made by said commis- United States will have been completely mainsioners, or by the umpire, or to their legal rep-tained. If, on the other hand, the claimants resentatives or assigns, except as in this Act shall fail in removing these doubts, or they otherwise limited or provided, according to the should be replaced by certain condemnation, proportion which their respective awards shall the honor of the United States will be vindibear to the whole amount of such moneys then cated by such measures as may then be dictated. held by him, and to pay the same without other Third. The executive government is not furcharge or deduction then as hereinafter pro- nished with the means of instituting and purvided, to the parties respectively entitled there- suing methods of investigation which can coto." erce the production of evidence or compel the examination of parties and witnesses. The authority for such an investigation must proceed from Congress. I would advise, therefore, that the proofs and the conclusions you shall come to thereon, if adverse to the immediate payment on these awards of the installments received from Mexico, be laid before Congress for the exercise of their plenary authority in the matter." This action of the President was communicated to Congress under date of April 15, 1880, by his forwarding a copy of the report of the Secretary of State, which concludes as follows: Sec. 5. "And whereas, the Government of Mexico has called the attention of the Government of the United States to the claims hereinafter named with a view to a rehearing, therefore be it enacted that the President of the United (States) be and he is hereby requested to investigate any charges of fraud presented by the Mexican Government as to the cases hereinafter named, and if he shall be of the opinion that the honor of the United States, the principles of public law or considerations of justice and equity require that the awards in the cases of Benjamin Weil and La Abra Silver Mining Company or either of them should be opened and the cases retried, it shall be lawful for him to withhold payment of said awards or either of them until such case or cases shall be retried and decided in such manner as the Governments of the United States and Mexico shall agree, or until Congress shall otherwise direct. And in case of such retrial and decision, any moneys paid or to be paid by the Republic of Mexico in respect of said awards respectively shall be held to abide the event and shall be dis-under the Convention." posed of accordingly; and the said present awards shall be set aside, modified or affirmed, as may be determined on such retrials Provided, That nothing herein shall be construed as an expression of any opinion of Congress in respect to the character of said claims or either of them." During the year 1879 President Hayes caused an investigation to be made of the charges of fraud presented by the Mexican Government, and the conclusion he reached is thus stated in the report of Mr. Evarts, the then Secretary of State: "Unless Congress should now make this disposition of the matter, and furnish thereby definite instructions to the department to reserve further payments upon these awards till the conclusion of such investigation, and to take such further order with the same thereafter as Congress might direct, it would appear to be the duty of the Executive to accept these awards as no longer open to reconsideration, and proceed in the payment of the same pro rata with all other awards No definitive instructions were given by Congress in respect to the matter during that session, and after the close of the session payments were made on these awards by the direction of the President the same as on the others. Another installment was paid by the Mexican Government and distributed to these claimants with the rest during President Garfield's administration. In this way five installments were distributed. After President Arthur came into office he examined the cases further, and "Believing that said award was obtained by fraud and perjury," negotiated a Treaty with Mexico providing for a "I conclude therefore, that neither the prin- rehearing. This Treaty is now pending before ciples of public law nor considerations of jus- the Senate for ratification. On the 31st of Jantice or equity require or permit, as between the uary, 1882, the sixth installment was paid by United States and Mexico, that the awards in Mexico to Mr Frelinghuysen, the present Secrethese cases should be opened and the cases re-tary of State. A distribution of this installment tried before a new international tribunal or un- to these claimants has been withheld by order der any new convention or negotiation respect- of the President on account of the pending ing the same between the United States and Treaty. Mexico. These suits were brought in the Supreme Second. I am, however, of opinion that the Court of the District of Columbia to obtain matters brought to the attention of this Gov-writs of mandamus requiring the Secretary of ernment on the part of Mexico do bring into State to pay to the several relators the amounts grave doubt the substantial integrity of the distributable to them respectively upon their claim of Benjamin Weil and the sincerity of disputed awards from the installment of 1882. the evidence as to the measure of damages in- The relator, Key, is the assignee of part of the sisted upon and accorded in the case of the La Weil claim. In his case, the Secretary filed an Abra Silver Mining Company, and that the answer, setting up the action of President Arhonor of the United States does require that thur in respect to this claim and the negotiathese two cases should be further investigated tion of the new Treaty. To this the relator deby the United States to ascertain whether this murred. Upon the hearing, the court below susGovernment has been made the means of en-tained the demurrer and awarded a peremptory forcing against a friendly power claims of our writ as prayed for. citizens based upon or exaggerated by fraud. In the case of the La Abra Company, a peti If such further investigation should remove tion substantially like that of the relator Key |