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one to set off bombs of the character used that night. But it was immaterial what was the width of said place, provided, as the court charged the jury, the defendant "exercised proper precautions for the protection of the spectators by keeping them a reasonable distance from the place of discharge.” Furthermore, when the attention of the court was called to said exception, the court further charged as follows:
"You will recall the testimony of the plaintiff that where the bomb was discharged was about 100 feet from where the plaintiff stood, and that there was an open space, according to the testimony of one of the Gerhardts, about 150 or 175 feet across, and, according to the testimony of some of the other witnesses, about 300 feet across. I leave the question with you as a question of fact whether the place in which they were set off, in view of the precautions which were taken to keep the audience a proper distance away, was reasonably safe."
No exception was taken to this charge.
The exceptions to the exclusion of the questions, on rebuttal, as to whether Gerhardt's employés were doing work on and furnishing the fireworks for Gerhardt or on their own responsibility, were not well taken, because the questions called for a conclusion of law. Moreover, they were not proper on rebuttal.
The plaintiff further excepted to the following remark addressed by the court to plaintiff's counsel during the trial :
"I do not doubt your good faith in the least, but it strikes me you are setting up a false issue in the case. There is enough in the case without injecting into it a false issue. It is perfectly apparent, from the young man's testimony, what the transaction really was."
In its charge the court, referring to the remark excepted to, said as follows:
“What are the facts? I made a remark during the examination of a witness, which perhaps I ought not to have made, that it seemed to me that the plaintiff was injecting a false issue into this case.”
The court then fully stated the claims of plaintiff and defendant. We think that, in these circumstances, if there was originally any error prejudicial to plaintiff, it was corrected by said reference thereto and statement of said claims.
Plaintiff also excepted to the following expression of opinion in the charge of the court, referring to plaintiff's claim that defendant employed irresponsible and unskillful persons to discharge said fireworks. The portion of said charge in which such expression was used was as follows:
"I leave it to you to say whether the defendant employed a responsible and skillful person, or whether it employed an irresponsible and unskillful person. If the committee employed a couple of Italia ns about whom they knew nothing, they did not exercise the prudence which an intelligent man should have exercised. For myself, I do not believe for a moment that they did any such thing; but that is a question of fact for you to determine, and not for me.”
In the federal courts an expression of opinion upon the facts is within the discretion of the judge. Baltimore & Potomac Railway Company v. Fifth Baptist Church, 137 U. S. 568, 574, II Sup. Ct. 185, 34 L. Ed. 784. "And it is so well settled, by a long series of de
cisions of this court, that the judge presiding at a trial, civil or criminal, in any court of the United States, is authorized, whenever he thinks it will assist the jury in arriving at a just conclusion, to express to them his opinion upon the questions of fact which he submits to their determination, that it is only necessary to refer to two or three recent cases in which the judge's opinion on matters of fact was quite as plainly and strongly expressed to the jury as in the case at bar. Vicksburg, etc., Railroad v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1, 30 L. Ed. 257; United States v. Philadelphia & Reading Railroad, 123 U. S. 113, 8 Sup. Ct. 77, 31 L. Ed. 138; Lovejoy v. United States, 128 U. S. 171, 9 Sup. Ct. 57, 32 L. Ed. 389." Simmons v. United States, 142 Ú. S. 148, 155, 12 Sup. Ct. 171, 35 L. Ed. 968.
The judgment is affirmed, with costs.
BOARD OF COUNCILMEN OF CITY OF FRANKFORT et al. v. DEPOSIT
BANK OF FRANKFORT et al.
(Circuit Court of Appeals, Sixth Circuit. August 1, 1903.)
No. 1,172. 1. APPEAL-JURISDICTION-Circuit Court OF APPEALS.
An order of the Circuit Court, made on an application for leave to file a bill of review for the purpose of setting aside a decree in favor of a bank, which quashed the service of notice of the application on the ground that the bank had become defunct as a corporation, but which also denied leave to file the bill on the merits, although for the same reason, did not relate wholly to matters of jurisdiction, and an appeal
therefrom lies to the Circuit Court of Appeals. 2. SAME--MATTERS REVIEWABLE.
Where, after an application for leave to file a bill of review had been denied, the court considered and denied on the merits a second application to file an amended bill which was tendered, such action was in effect an opening of the first order, and an appeal from the later order
brings up the entire question of the right to file the bill on the merits. 8. CORPORATIONS-EFFECT OF REPEAL OF CHARTER-Rights PRESERVED BY
Ky. St. 1894, $ 1987, relating to the chartering of corporations by the Legislature, and which provides that, “wbilst privileges and franchises so granted may be changed or repealed, no amendment shall impair other rights previously vested,” is broad and general in its language, and preserves against impairment the vested rights of all persons, whether of the corporation and its members or of other persons against it; and a corporation whose charter has been repealed still exists for the purpose of being sued on obligations previously incurred, or of being brought into
court by notice in proceedings previously instituted. 4. BILL OF REVIEW-APPLICATION FOR LEAVE TO FILE-Review ON APPEAL.
Leave given by the Supreme Court, after its affirmance of a decree of the Circuit Court, to apply to the latter court for leave to file a bill of review, merely lifts the bar of its own decree, and leaves the application to be determined by the Circuit Court on its merits, subject to the right of either party to have its decision reviewed on appeal by the court having jurisdiction.
| 1. Orders, decrees and judgments reviewable in Circuit Court of Appeals, see note to Salmon v. Mills, 13 C. C. A. 374.
6. SAME-GROUNDS IN FEDERAL COURT-OVERRULING OF FORMER DECISIONS BY
A decree of the Circuit Court of the United States, based on an estoppel created by a judgment of a state court between the parties, and which has been affirmed by the Supreme Court, will not be reversed on a bill of review because the judgment creating the estoppel is subsequently reversed by the highest court of the state on appeal, where, when rendered, it was in accordance with the law of the state as declared by such court, which afterwards overruled its former decisions.
Appeal from the Circuit Court of the United States for the Eastern District of Kentucky.
For opinion below, see 120 Fed. 165.
SEVERENS, Circuit Judge. This is an appeal, prosecuted in behalf of the city of Frankfort and the state board of valuation and assessment of Kentucky, from an order made by the Circuit Court of the United States for the Eastern District of that state (120 Fed. 165), refusing leave to file a bill of review proposed by the appellants for the purpose of reconsidering a decree made by the said Circuit Court on June 25, 1898, whereby the appellants were enjoined from proceeding under a law passed by the Legislature of Kentucky November 11, 1892 (Laws 1892, p. 277, C. 103), to value and levy a tax upon the franchise of the above-named appellee, the Deposit Bank of Frankfort, for the years 1895-98, and subsequent years, until the expiration of its charter, which decree was rested upon the ground that the abovementioned law was an impairment of a contract between the state and the bank, which stipulated for a different and lesser rate of taxation than that contemplated by the law complained of. That decree was affirmed by the Supreme Court of the United States on May 15, 1899. In January, 1902, the defendants in that suit, the present appellants, moved the Supreme Court for leave to file a bill of review, upon a petition setting forth that the said decree against them was founded solely upon an estoppel arising from a former judgment of the Fayette Circuit court, one of the state courts of Kentucky having general jurisdiction, in a suit between the same parties brought against the bank to recover the taxes of a former year, in which it was determined that the said law of November 11, 1892, was void for the reason above stated, and that the taxes for which the suit was brought were not recoverable; and it was further stated in said petition that after the final determination of the cause, which had been pending in the United States Circuit Court and Supreme Court, the defendants in the cause in the state circuit court removed it by appeal to the Court of Appeals of the state of Kentucky, wherein the decree of the lower court was reversed upon the ground that the lower court erroneously held the said law of 1892 invalid, and the cause was remanded, and that thereupon such proceedings were had in the lower court that the plaintiffs recovered judgment. It does not appear that the bill of review which the petitioners proposed to file was exhibited to the Supreme Court, and we infer that none such was there shown. Notice of the motion was served upon Frank Chinn, as the attorney, and upon Buford Hendrick, as president, of the bank. They appeared and moved to quash the return of service of the notice upon affidavits made by them that the charter of the bank was repealed by an act of the Legislature of the state passed March 22, 1900 (Laws 1900, p. 88, c. 28), whereby, as they insisted, the bank ceased to exist, and that all relationship between them and the bank was completely ended, so that service upon them was nugatory. Under a stipulation that there should result no waiver of their motion, they filed a response in which they set forth the act repealing the charter of the bank and other matters not now necessary to be repeated. The Supreme Court thereupon made the following order:
"On consideration of the motion for leave to file a bill of review herein, and of the arguments of counsel thereupon had, as well in support of as against the same, it is now here ordered by the court that permission be, and the same is hereby, granted the appellants to apply to the Circuit Court of the United States for the Eastern District of Kentucky for leave to file such bill as counsel may be advised.”
This order having been certified to the Circuit Court, the petitioners applied to that court for leave to file their bill of review, in which they recited the proceedings in the original suit, the reversal by the Kentucky Court of Appeals of the judgment of the Fayette circuit court which, as they allege, was held by the United States Circuit Court to constitute an estoppel against the contention of the defendants in said former suit; and they thereupon prayed that, upon consideration of the removal of said estoppel by the judgment of the Kentucky Court of Appeals, the court would review and vacate its former judgment and enter a decree in favor of the defendants. Service of notice was made as before on the persons supposed to represent the bank as its president and attorney. They appeared and made the same objection to the service of notice, and made the same representation in regard to the repeal of the bank's charter by the Legislature on March 22, 1900. The Circuit Court, having filed an opinion stating its reasons, sustained the objection to the service of notice, quashed the return of service, and overruled the motion for leave to file the bill of review. Thereupon the petitioners filed an amended bill of review and renewed their motion for leave. The amendment made by the new bill consisted of allegations of certain matters of fact designed to show that the bank was not extinguished by the act of March 22, 1900, but that it was reorganized on April 28, 1900, under a law passed in 1856, and had since continued its operations at its former place of business. The petitioners filed affidavits tending to show that the new bank was not a reorganization of the old, but was a new, corporation, and they renewed their motion and their objection to allowing the bill to be filed. Whereupon the court entered an order which, after reciting the tender of the amended bill, the motion to quash service of notice, and the objection to allowing the bill to be filed, continued as follows:
"And said offer to file said amended bill of review being heard, upon said amended bill and the exhibits referred to therein, and upon the said affidavits, objections, and motions to quash, and the court being sutliciently advised, delivered an opinion herein, and it is ordered that said motion to quash and objections to the filing of said amended bill of review be sustained, and the said offer to file an amended bill of review be refused. And it is further adjudged that the said respondents recover of the petitioners their costs herein expended."
The petitioners, having assigned errors, first, in the order quashing the service of notice, and, second, in refusing to allow the amended bill to be filed, appealed to this court. The appellees moved to dismiss the appeal upon the ground that the order appealed from was one which involved the jurisdiction of the Circuit Court and should have been taken to the Supreme Court. This motion was, by order, reserved until the hearing, and must now first be disposed of. As will have been seen, the order complained of not only quashed the service of notice, but also finally denied permission to file the bill. It is true it may be said that a similar reason to that on which the motion to quash was granted was relied on as an objection to the filing of the bill, namely, that the bank was a defunct corporation, which had neither capacity to have representatives nor to be pursued in a legal proceeding. But the order extended beyond the mere quashing of the service; and, in the face of the issue as to whether the bank still existed, it finally denied the application and ordered costs against the petitioners. We think that, in this condition of the case, there being a question of jurisdiction and also one of the merits, it was competent to bring the case to this court, if the petitioners were so advised.
It is objected that, as this appeal purports to be taken from the order made on the tender of the amended bill, and not from that made on the bill first tendered, the appeal is nugatory; that the order first made was the essential judgment, and that the matter of leave became res judicata, so that the second order did not disturb it. But it is evident that it was not so dealt with in the court below. The court treated the second application as a continuance of the first, and did not at all consider the first order as foreclosing the inquiry. What the court did was in effect to open the first order and hear the original application upon the amended bill. This objection to the appeal, as one taken from the order finally made, is not tenable.
The court below, upon a survey of the Kentucky statutes bearing upon the subject, reached the conclusion that by the act of March 22, 1900, the bank's charter was immediately repealed, and the corporation completely extinguished, and that there was no statute of Kentucky which continued its existence for the purpose of enforcing its liabilities previously incurred. Section 1 of the act of March 22, 1900, with the preamble, reads as follows:
"Whereas, by virtue of a recent decision of the Supreme Court of the United States, all banks of this state, both state and national, are now required to pay state and local taxes in Kentucky, except the Bank of Kentucky, the Farmers' Bank of Kentucky, and the Deposit Bank of Frankfort, which three last-named banks, by virtue of said decision, are now claiming exemption from all state and local taxes, except as provided in the Hewitt law, during their corporate existence; therefore be it enacted by the General Assembly of the commonwealth of Kentucky:
"Section 1. That an act, entitled 'An act to establish the Bank of Kentucky,' approved February sixteenth, eighteen hundred and thirty-four, and all amendments and extensions thereof, also an act, entitled 'An act to incorporate the Farmers' Bank of Kentucky,' approved February sixteenth,