Opinion of the Court.

County Court alone, would have been sufficient, it would be contended that the obligation of the contract of subscription was impaired by a law passed afterwards that required the signature of the clerk of the court to the bond as well as that of the presiding justice. In the view we take of the case, the requirement of the signature and certificate of the Auditor of State is nothing more in legal effect than that. By the contract of subscription the township agreed to take stock and pay for it in valid negotiable bonds, and the company agreed to take the bonds and give the stock. All the new law has done is to provide what shall be a valid negotiable bond of the township, and this by providing additional guaranties against fraudulent and irregular issues. Of such a provision honest parties cannot complain, for it is always to be presumed that a public officer will do whenever called on what the law requires of him.

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 inquire 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.

We are of opinion that this case is in no respect distinguishable from Anthony v. County of Jasper, and upon that authority The judgment is affirmed.

Opinion of the Court.

SUSQUEHANNA BOOM COMPANY & Others v. WEST BRANCH BOOM COMPANY.

IN ERROR TO THE SUPREME COURT OF PENNSYLVANIA.

Submitted December 10th, 1883.-Decided January 7th, 1884.

Constitutional Law-Corporations—Practice.

Where the federal question insisted on in this court, respecting a contract between a State and a corporation in the grant of franchises by the former to the latter, was not raised at the trial in the State court, or where it does not appear unmistakably that the State court either knew or ought to have known prior to its judgment that the judgment, when rendered, would necessarily involve that question, this court cannot take jurisdiction of the case for the purpose of reviewing the judgment of the State court. It is not sufficient that the question was raised after judgment, on a motion for a rehearing. Brown v. Colorado, 106 U. S. 95, cited and approved.

Motion to dismiss a cause brought here from a State court by writ of error, on the ground that the federal question was not raised in the court below.

Mr. Seymour D. Ball for defendant in error, moving. Mr. William A. Wallace for plaintiffs in error, opposing.

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

Opinion of the Court.

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.

It is clear to our minds that we have no jurisdiction. The Constitution protects State corporations 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 Williamsport. That undoubtedly implied the 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 settled. That is clearly all there was in the case up to the time of the final decision of the Supreme Court, whose judgment we are now called on to review. There is nowhere, either in the pleadings, the evidence, or the suggestions 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. 95, "if the judgments 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

Statement of Facts.

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 obliga tion 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.

HOLLAND v. CHAMBERS.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

Submitted December 17th, 1883.-Decided January 7th, 1884.

Removal of Causes.

Under the act of March 3d, 1875, c. 137, 18 Stat. 470, a cause cannot be removed from a State court to a Circuit Court of the United States after a trial has been had in a State court, and judgment rendered and set aside, and new trial ordered, and the term passed at which this was done.

Motion to dismiss an appeal from the decision of a Circuit Court remanding a cause to a State court.

Mr. James O. Broadhead for defendant in error and mover.

Mr. S. M. Smith and Mr. J. R. Sypher attorneys of record for plaintiff in error. No brief filed.

Opinion of the Court.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This is a writ of error brought under sec. 5 of the act of March 3d, 1875, ch. 137, 18 Stat. 470, to review an order of the Circuit Court remanding a cause which had been removed from a State court. The facts are as follows:

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 24th, 1880. A reply was filed February 5th. 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 sec. 639 was repealed by the act of March 3d, 1875, ch. 137. That was settled in Hyde v. Ruble, 104 U. S. 407, and King v. Cornell, 106 U. S. 395.

Under the act of 1875 the petition for removal must be filed in the State court before or at the term at which the cause This suit could not only have been tried, tried once, nearly two years before the Such being the case, it is needless to in

could be first tried. but it actually was petition to remove.