150

not affected by such judgment, he is not en- | Ryan, and William Preston Hill for plaintitled to an appeal. tiff in error.

The fact that the various statutes fixing the jurisdiction of the circuit court of the United States, and of this court, which, from the original judiciary act of 1789 [1 Stat. at L. 73, chap. 20] have, where the amount involved was made the test of jurisdiction, uniformly used the words "exclusive of costs," would indicate, so far as the Federal courts are concerned, that a mere judgment for costs could not ordinarily be made the basis of an appeal to this court.

Messrs. Edward C. Crow and Bruce Barnett for defendants in error.

Mr. Justice Holmes delivered the opinion of the court:

This is a writ of error to the supreme court of Missouri, upon a judgment quashing an alternative writ of mandamus to the state board of equalization. The petition alleges that the board, instead of assessing the total actual cash value of the taxable property of certain railroad, bridge, teleFor the reasons above given the appellant phone, telegraph, and express companies, did not have the requisite interest to main-made pretended, fraudulent, inadequate, and tain this appeal, and it is therefore dismissed.

1.

2.

The judgment of a state board of equalization of Missouri, which has laid a substantial tax upon corporations therein, is final under the Missouri Constitution and statutes.

A taxpayer who admits that his own tax is correct cannot, on the ground that he will be deprived of his property without due process of law, and denied the equal protection of the laws, contrary to the 14th Amendment of the Constitution of the United States, have a writ of error from the United States Supreme Court to review a construction by the supreme court of the state of the statutes thereof, as exempting in whole or in part certain corporations from the payment of taxes.

8. Questions under the state Constitution and laws cannot be considered on a writ of error to a state court, as they might be on error to an inferior Federal court.

[No. 180.]

not uniform assessments upon such proper-
ty, at valuations varying from about a quar
ter to forty-eight per cent of the actual
which they did not assess at all.
value, except that of the express companies,
It alleges
that in this way the petitioner will be de-
prived of his property without due process
of law and will be denied the equal protec-
tion of the laws, contrary to the 14th
Amendment of the Constitution of the
United States. The motion to quash denied
the jurisdiction of the supreme court of
Missouri to issue the writ, and also the suffi-
ciency of the grounds on which the writ was
allowed. The court sustained the motion
without an opinion or statement of reasons.

For all that appears, the court may have quashed the writ on grounds of local prac tice. But if this consideration be laid on one side, it is impossible to say that the board of equalization has not acted with regard to those companies which it has assessed. It has laid a substantial tax upon them. Its judgment is final under the Missouri Constitution and statutes. Mo. Const. art. 10, § 18; Rev. Stat. §§ 9344, 9356, Stat. 1901, p. 232. If, nevertheless, we assume that mandamus would lie upon a clear case of fraud adequately alleged and proved (State Bd. of Equalization v. People, 191 Ill. 528, 539, 58 L. R. A. 513, 61 N. E. 339), it would be a strong thing to revise the judg ment of the board on the strength of allegations of undervaluations, and the single adjective "fraudulent" without more specific allegations of fact. State ex rel. Gottlieb v. Western U. Teleg. Co. 165 Mo. 502, 516, 517, 65 S. W. 775; State ex rel. Folk v. Talty, 166 Mo. 529, 560, 66 S. W. 361; Manchester

Argued and submitted October 27, 1903, V. Furnald, 71 N. H. 153, 158, 51 Atl. 657;

Knight v. Thomas, 93 Me. 494, 45 Atl. 499; Maish v. Arizona, 164 U. S. 599, 611, 41 L cd. 567, 571, 17 Sup. Ct. Rep. 193; Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421, 434, 438, 38 L. ed. 1031, 14 Sup. Ct. Rep. 1114. See Fogg v. Blair, 139 U. S. 118, 127, 35 L. ed. 104, 107, 11 Sup. Ct. Rep.

Messrs. Edward P. Johnson, Frank K. 476.

691.

S. 283, 293-295, 42 L. ed. 1037, 1043, 18 Argued and submitted November 6, 1903. Sup. Ct. Rep. 594; Connolly v. Union Sewer

I

•122

estate; the cash value of its personal estate; the cash value of its credits; the amount of its debts; the name and number of shares of each stockholder; which certificate shall be deposited on or before the 15th | day of February or of August with the county clerk of the county in which said corporation transacts its business, who shall record the same at length in a book to be kept by him for that purpose."

an act of Congress the suit is one arising under the laws of the United States. This, however, could not be said of the present suit, if regard be had to the acts of Congress defining and regulating the jurisdiction of the courts of the United States.

The judiciary act of March 3d, 1875, for the first time invested the circuit courts of the United States, without reference to the citizenship of the parties, with original jurisdiction of all suits of a civil nature at common law or in equity, where the matter

"§ 1346. The certificates required by §§ 1334, 1337, 1343, and 1344, except certifieates of transfers of stock, shall be made un-in dispute exceeded a prescribed sum, and der oath or affirmation by the person subscribing the same; and if any person shall knowingly swear or affirm falsely as to any material facts he shall be deemed guilty of perjury, and be punished accordingly.

the suit was one "arising under the Constitution or laws of the United States." [18 Stat. at L. 470, chap. 137 (U. S. Comp. Stat. 1901, p. 508).] Referring to that statute, this court, in Petri v. Commercial Nat. Bank, 142 U. S. 644, 648, 35 L. ed. 1144, 1145, 12 Sup. Ct. Rep. 325, 326, said: "Suits by or against national banks might therefore be brought or removed upon the

matter, since, as they were created by Congress, and could acquire no right, make no contract, and bring no suit, which was not authorized by a law of the United States, a

"§ 1347. If the president or secretary of any such corporation shall neglect or refuse to comply with the provisions of § 1337, and to perform the duties required of them respectively, the persons so neglecting or re-ground of diverse citizenship, or of subjectfusing shall jointly and severally be liable to an action founded on this statute for all debts of such corporation contracted during the period of any such neglect or refusal." The complaint alleged that during the en-suit by or against them was necessarily a tire period of his term of office as president of the Bank of Mammoth Springs, that is, from June 9th, 1891, to June 9th, 1896, the defendant Buford "wholly neglected to comply with the provisions and perform the duties required of him by said §§ 1337 and 1346, by making, swearing to, and causing to be filed, the statement or certificate required thereby."

The defendant demurred to the complaint on various grounds; one being that the plaintiff's action appeared to be barred by the statute of limitations of Arkansas. The circuit court sustained the demurrer, it being of opinion that the complaint did not show any cause of action; also, that a suit for the debt in question was barred by the statute of limitations of Arkansas. The plaintiff declining to amend, the suit was dismissed. That judgment was affirmed by the circuit court of appeals, 53 C. C. A. 14, 114 Fed. 290, and from that judgment the present writ of error was prosecuted.

By the very terms of the judiciary act of March 3d, 1891, 26 Stat. at L. 826, chap. 517 (U. S. Comp. Stat. 1901, pp. 488, 547), the judgment of a circuit court of appeals of the United States is final where the jurisdiction of the circuit court depended entire ly upon the diverse citizenship of the parties. No ground whatever of jurisdiction in the circuit court appears in the complaint or elsewhere in the record, other than diversity in the citizenship of the parties, unless it can be said that by reason alone of the plaintiff bank having been organized under

suit arising under the laws of the United States. Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204; Leather Mfrs. Nat. Bank v. Cooper, 120 U. S. 778, 30 L. ed. 816, 7 Sup. Ct. Rep. 777; Pacific Railroad Removal Cases, 115 U. S. 1, 29 L. ed. 319, 5 Sup. Ct. Rep. 1113. And, of course, national banks as well as state banks and individuals, might bring or remove suits otherwise arising under the Constitution, laws, or treaties of the United States."

But, in respect of national bank associa tions, a radical change was introduced by subsequent acts of Congress.

By the act of July 12th, 1882, chap. 290, it was provided: "That the jurisdiction for suits hereafter brought by or against any association established under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business, where such national banking associations may be doing business when such suits may be begun: And all laws and parts of laws of the United States inconsistent with this proviso be, and the same are hereby, repealed." 22 Stat. at L. 162 (U. S. Comp. Stat. 1901, p. 3457). Then came the judiciary act of March 3d, 1887, corrected by the act of August 13th, 1888, chap. 866, and providing: "That all national banking associations established under the laws of the United

States shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same state. The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank." 25 Stat. at L. 433 (U. S. Comp. Stat. 1901, p. 514).

Petri v.

What we have said is, we think, required by the decision in Ex parte Jones, 164 U. S. 691, 41 L. ed. 601, 17 Sup. Ct. Rep. 222. It appeared in that case that a judgment for money was recovered in the circuit court of the United States for the district of Massachusetts. Its amount was paid and subsequently deposited in a national bank. The bank having refused to pay over the money, suit was brought against it. The suit was dismissed by the circuit court and the judg ment of dismissal was affirmed by the circuit court of appeals. The latter court hav ing refused to allow an appeal upon the ground that an appeal was not given by the statute, proceedings by mandamus were in

ring to the clause in the judiciary act of 1888, declaring that national banking associations should be deemed citizens of the states in which they were respectively locatcd, and that the circuit and district courts shoul! not have jurisdiction, other than such as they would have in cases between individual citizens of the same states, the court said: "In Leather Mfrs. Nat. Bank v. Cooper, 120 U. S. 778, 30 L. ed. 816, 7 Sup. Ct. Rep. 777, it was held by this court that, under the act of 1882, which was similar in its terms [to that of 1888], an action against a national bank could not be removed to the Federal court, 'unless a similar suit could be entertained by the same court by or against a state bank in like situation with the national bank. Consequently, so long as the act of 1882 was in force, nothing in the way of jurisdiction could be claimed by a national bank because of the source of its incorporation. A national bank was, by that statute, placed before the law in this respect the same as a bank not organized under the laws of the United States.'

The necessary effect of this legislation was to make national banks, for purposes of sustituted to compel it to do so. After refering and being sued in the circuit courts of the United States, citizens of the states in which they were respectively located, and to withdraw from them the right to invoke the jurisdiction of the circuit courts of the United States simply upon the ground that they were created by, and exercised their powers under. acts of Congress. No other purpose can be imputed to Congress than to effect that result. Of course, notwithstanding the acts of 1882 and 1888, there remained to a national bank, independently of its Federal origin, and as a citizen of the state in which it was located, the right to invoke the original jurisdiction of the circuit courts in any suit involving the required amount, and which, by reason of its subject-matter, and not by reason simply of the Federal origin of the bank, was a suit arising under the Constitution or laws of the United States. Commercial Nat. Bank, 142 U. S. 644, 648, 35 L. ed. 1144, 1145, 12 Sup. Ct. Rep. 325. Treating the plaintiff as a citizen of Tennessee, its right to sue the defendant in the Federal court, sitting in Arkansas, was beyond dispute. But, as already suggested, it did not assert any right, privilege, or immunity that was dependent in any degree upon the Constitution or laws of the United States. As jurisdiction could not arise merely from the Federal origin of the plaintiff bank, and as no Federal question was involved in the suit, it must be taken that the only ground of jurisdiction in the circuit court was the diverse citizenship of the parties. If, apart from the fact that the plaintiff bank was a Federal corporation, the suit had been one arising under the Constitution or laws of the United States, it could not have been said that the jurisdiction of the circuit court depended entirely upon diverse citizenship of the parties. But as no Federal questions, upon which the suit depended, are presented by the record, the judgment of the circuit court of appeals in this case was final and, therefore, not subject to review by this court.

. . In this case the original bill averred the complainant to be a citizen of Pennsylvania, and the defendant to be a national bank, duly established under the laws of the United States, having its place of business at Boston, and a citizen of the state of Massachusetts. As the bill was filed after the act of 1888 took effect, it must be deemed to be a suit dependent upon citizenship alone.

The petition for mandamus must be denied." Of course, that suit would not have been so regarded, and the petition would have been granted, if the Federal origin of the bank had been itself ground of jurisdiction, independently of the diverse citizenship of the parties.

For the reasons stated, the writ of error must be dismissed for want of jurisdiction in this court to review the final order of the Circuit Court of Appeals.

Dismissed.

252

(191 U. S. 247)

ALICE R. MOSHEUVEL and Anthony J. from the jury because of the contributory Mosheuvel, Plffs. in Err.,

neglect of the plaintiff, nevertheless, the judg ment should be affirmed because there was no adequate proof to go to the jury on the question of the negligence of the defendant. contribu- The sole controversy, hence, is whether the case was rightly taken from the jury because as a matter of law, contributory neglect on the part of the plaintiff was demonstrated.

One who, with knowledge of the situation,

elects, in descending the steps from her resldence to the sidewalk, to cross over a pro

Jecting uncovered water box about 4 inches square, with its outer edge about 4 inches from a line drawn from the tread of the step nearest the sidewalk to the ground, Instead

of avoiding the box by stepping to one side, is not, as a matter of law, guilty of such contributory negligence as will defeat her action against the municipality to recover damages for the personal injuries sustained by reason of her failure to clear the box.

[No. 6.]

Argued October 20, 1902. Affirmed by Divided Court November 3, 1902. Reargued October 13, 1903. Decided November 30,

1903.

N ERROR to the Court of Appeals of the

Two elements of fact are involved in determining whether the alleged contributory neglect of the plaintiff was a question for the jury or for the court. The first is, what were the undisputed facts? and the second, whether such facts necessarily engender the ultimate inference of fact as to contributory neglect. The elementary law is that issues of fact are to be decided by the jury. But where the probative facts are undisputed, and where all reasonable minds can draw but one inference from them, the question to be determined is one of law for the court. Marande v. Texas & P. R. Co. 184 U. S. 173, 186, 46 L. ed. 487, 494, 22 Sup. Ct. Rep. 340, and cases reviewed and cited.

In other words, the principle is that where there is no disputed issue of fact, and in rea.

I District of the Court of Appena fute son no controversy as to the inferences to

ment which affirmed a judgment of the Supreme Court of the District entered on a directed verdict for the defendant in an action for personal injuries. Reversed, with instructions to reverse the judgment of the Supreme Court of the District, and to grant

new trial.

See same case below, 17 App. D. C. 401. The facts are stated in the opinion. Messrs. Charles Cowles Tucker and Henry E. Davis for plaintiffs in error. Messrs. Andrew B. Duvall and Edward H. Thomas for defendant in error.

Mr. Justice White delivered the opin

ion of the court:

be drawn from the undisputed facts, there can be no real question of fact to be passed on by the jury. Were the facts bearing on the question of contributory negligence undisputed, and, if so, could reasonable minds deduce only one inference from them? The

court below recited what it deemed to be the undisputed facts concerning the water box and the event which took place at the time of the fall of the plaintiff on the sidewalk, as follows:

"The water box was in the sidewalk at the bottom of three steps which led from a brick-paved landing at the front of the plaintiff's house: and there was no place of egress from the house to the street other The plaintiffs in error-husband and wife than by these steps. The box was so sit-sued to recover the amount of the damage uated about midway of the steps that, in oralleged to have been sustained from a per- der to go from the lowest step to the side. sonal injury suffered by the wife as the re- walk, it was necessary to go either to the sult of a fall on a sidewalk in the District right or to the left, which it would have of Columbia. We shall hereafter refer to been safe to do, or to take an unusually the wife as the plaintiff. The fall was al- long step, at all events, unusually long for leged to have been caused by a hole result- the female plaintiff, in order to step over ing from an uncovered water box in the side- the box and clear it. It was about 4 inches walk, which appliance for a long time had square, projecting irregularly above the lev. been allowed to be in a dangerous condi-el of the street, and was without covering of tion through the neglect of the defendant. At the close of the evidence the court in structed a verdict for the defendant on the ground of the contributory neglect of the plaintiff; and, on appeal, the action of the court in so doing was affirmed. 17 App D. C. 401.

It is not contended at bar, if it be found that error was committed in taking the case

any kind; and its condition was known to the District authorities, for the inspector of plumbing, who had come to the house at the plaintiff's request to inspect the plumbing, had made some remark to her about it. It was in the same dangerous con. dition at the time of the commencement of the plaintiff's occupancy of the house, about nine months before the accident, and so re

1. See Municipal Corporations, vol. 36, Cent. Dig. § 1679.

*253