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visement by the court and afterwards decided by a divided court, two of the members sitting in said cause being in favor of reversal and two in favor of affirmation, which entry in legal effect results in the affirmation of the judgment of the court below."

This motion was overruled March 1, 1897, in these terms: "This cause having been submitted on motion to amend the record and make an entry nunc pro tunc granting the defendants in error a rehearing on a former day of this term, the court announces its decision by Chief Justice Smith, the associate justices concurring, denying said motion. It is therefore considered and adjudged by the court that the motion to amend the record and to make an entry nunc pro tunc be, and the same hereby is, denied." Thereupon the case was brought to this court on writ of error and also on appeal.

The contention of plaintiff in error is that a rehearing was granted, and that, as the court was equally divided on such alleged rehearing, the judgment of the district court was affirmed. We are of opinion, however, that, in the light of the various orders of the supreme court, although that of December 18 was somewhat obscurely worded, a rehearing was not granted, but that the motion for rehearing was permitted to be argued, and as [66] that was heard before four of the judges of the court, and there was an equal division, it was denied. Had this been otherwise, the court would not have unanimously overruled the motion to amend the record so as to make it appear that a rehearing had actua!ly been granted.

1.

2.

3.

4.

5.

Moreover, counsel agree that under the rules of the court a rehearing could not be granted unless one of the justices who concurred in the judgment so desired, and a majority of the court so determined and that this was also true of permission to argue such application. It is evident that oral argument was allowed, and it also appears that no justice who concurred in the judg-6. ment desired a rehearing, and that a majority of the court did not determine to grant it. The judgment of reversal therefore stood, and as it was not a final judgment, the writ of error and the appeal must be dismissed, and it is so ordered.

HOUSTON & TEXAS CENTRAL RAILROAD COMPANY, et al., Plffs. in Err.,

v.

STATE OF TEXAS.

(See 8. C. Reporter's ed. 66-103.)

Writ of error-Federal question—impairment of obligation of contract-state

7.

treasury warrants circulating as money --violation of Constitution-legality of payment to state therein-warrants issued in aid of Rebellion.

A decision of a state court may give effect to a state statute and thereby impair the obligation of a contract with the state, although the court does not mention the statute.

A case is not removable to a Federal court on the ground that matters of a Federal nature are involved, when no such matter appears in plaintiff's original cause of action, but is first set up by his reply to a defense. A finding by the court that warrants issued under and by virtue of certain acts of the legislature were issued with intention to have them circulate as money is not a finding of fact, but is in the nature of a legal conclusion, which may be reviewable by the Supreme Court of the United States.

A warrant drawn by state authorities in payment of an appropriation made by the legislature for a debt due from the state to an individual, and payable upon presentation if there be funds in the treasury, cannot be deemed a bill of credit in violation of U. S. Const. art. 1, § 10, or to be a treasury warrant intended to circulate as money in violation of Tex. Const. 1845, art. 7, § 8, although the state directs its officers to receive such warrants as money in payment of certain dues to the state, and to deliver them to those who would receive them as money I payment of dues from the state, but not to reissue them when once they come back to the treasury of the state.

Payments actually received by state officers in pursuance of a state statute are not vold because made in state treasury warrants which had been illegally issued in violation of constitutional provisions against issuing warrants to circulate as money or against bills of credit, or because they were issued in aid of the Rebellion, even if the offer of the state to receive them was not binding while unexecuted.

The obligation of the contract which the law raises from the transaction itself when a state actually receives in payment of an obligation treasury warrants which were void, and thereupon cancels them, would be impaired by any subsequent statute of the state which repudiated or permitted the repudiation of the payments.

A construction by a state court of a state statute, whereby a cause of action under the statute for default of payments is enforced on the ground that payments previously made and accepted by the state are void, operates to impair the obligation of the implied contract arising out of the acceptance of the payments, and therefore violates the Federal Constitution, although the state court does not mention the statute.

[No. 81.]

NOTE-As to what are bills of credit within | courts; necessity of Federal question-see notes the United States Constitution; confederate to Hamblin v. Western Land Co. 37 L. ed. U. S. notes are not see note to Craig v. Missouri, 7267; Kipley v. Illinois ea rel. Akin, 42 L. ed. L. ed. U. 8. 162.

As to what laws are void as impairing obligation of contract-see note to Fletcher v. Peck, 8 L. ed. U. S. 162.

As to jurisdiction of Federal over state

U. S. 998.

As to what is a Federal question; when considered-see note to Re Buchanan, 39 L. ed. U. S. 884.

[67]

March 26, 1900.

Argued December 13, 14, 15, 1899. Decided *Subsequently, semiannual payments of [69] interest and sinking fund were made by or on account of the Washington County Railroad Company (one of the predecessors of the

IN ERROR to the Court of Civil Appeals

of the State of Texas to review a decision foreclosing a lien on railroad property. Reversed.

See same case below, 41 S. W. 157.

Statement by Mr. Justice Peckham: *This proceeding was commenced by the state of Texas against the defendant, the Houston & Texas Central Railroad Company (hereafter called the company), to recover

the amount due on certain bonds issued to the state, and to foreclose the lien which existed upon its property as security for the payment of such bonds. The company is the legal successor of the two companies which received the loans and gave their bonds, and no question of liability arises on that ground. Judgment was given in the trial court for the amount found due, and a lien was declared and a sale of the property of the company ordered. From this judgment the company appealed to the court of civil appeals for the state, where it was modified, and then affirmed. The company brings the case here on writ of error.

The petition of the state by which the proceeding was commenced showed that the predecessors of the plaintiff in error borrowed money from the school fund of the state, and gave their bonds therefor. These bonds were not paid according to their tenor and effect, and the legislature, therefore, on August 13, 1870, passed a general act for the relief of [68] railroad *companies indebted to the state, by which it was provided that if any company should on the 1st day of November, 1870, pay six months' interest on the aggregate amount of the loan which, on the 1st day of May. 1870, was due from it to the state, and 1 per centum of the principal and thereafter should make similar semiannual payments, the state would not exact any other payments.

(What was the aggregate amount of the loans due on the 1st of May, 1870, from the two companies of which the present company is the successor, is the question in controver sy, and its answer depends upon the validity of certain payments made by the companies to the state in treasury warrants during the war. Part of the discussion rests upon the meaning and effect of this act, and it is therefore given in full in the margin.)†

An Act for the Relief of Railroad Companies Indebted to the State for Loans from the Special School Fund.

Whereas, the political disturbances since the year 1860. by unsettling the business of the country, have largely contributed to prevent compliance on the part of railroad companies indebted to the state for loans from the special school fund, with their engagements respecting the payment of the principal and interest of said loans; and,

Whereas, it is desired to relieve said companies from the liability of their railroads to sale consequent upon their noncompliance as afore wald: Therefore,

in up to

1st of May, 1879, but no payment was made on November 1, 1879, or at any time thereafter. Similar payments were made by or on account of the Houston & Texas Central Railway Company (the other of such predecessors) up to and including the 1st day of May, 1893, but a portion only of the semiannual interest claimed to be due in November, 1893, was paid, and nothing has been paid since November 1, 1893. Judgment was prayed for the sums of money stated to be due, with interest, for the foreclosure of the lien, and for a sale of the property under execution, the proceeds to be applied to the payment of the sum due with interest, and for such other relief as might be necessary.

To this petition the defendant filed an answer, and therein, among other things, alleged that after the commencement of the civil war the various railroad companies were unable to fulfil their obligations to the state, and therefore the legislature of Texas, on the 11th day of January, 1862, passed an act for their relief, extending the time of payment of interest and sinking fund amounts until the 1st of January, 1864.

*The state legislature, on December 16, [70] 1863, passed the first act in relation to receiving treasury warrants from railroad companies, which reads as follows:

"Sec. 1. Be it enacted by the legislature of the state of Texas, that the comptroller of the state be, and he is hereby, authorized to receive from the railroad companies in this state who are indebted to the special schoo fund, all interest on their bonds that may now be or hereafter become due, provided the same is tendered in state bonds or in state treasury warrants, previous to the meeting of the next regular session of the state legislature.

"Sec. 2. That for all sums so paid in the comptroller and treasurer shall issue to the special school fund the bonds of the state bearing 6 per cent interest."

The legislature also passed another act on May 28, 1864, which reads as follows:

"Sec. 1. Be it enacted by the legislature of the state of Texas, that the provisions of the act of which it is amendatory shall not apply to railroad companies that fail or refuse to receive state bonds or state treasury

Sec. 1. Be it enacted by the legislature of the state of Texas, that any railroad company indebted to the state for loans from the special school fund may avoid the sale of its railroad for the nonpayment of principal or interest by the payment into the treasury of the state, on the 1st day of November, A. D. 1870, of six months' interest on the aggregate amount due on account of said loans, principal and interest, as said aggregate amount stood on the 1st day of May, A. D. 1870, and by the payment, in addition, on said 1st day of November of 1 per cent upon said aggregate amount, to be applied toward the sinking fund provided for by existing laws in respect to said loans, and by contin

1899.

HOUSTON & T. C. R. Co. v. TEXAS.

warrants at par for freight or passage at the them to the various people who demanded
the same, and they subsequently paid trea
prices or rates established by law.
"Sec. 2. That whenever satisfactory evi-ury warrants to the comptroller of the state
dence is produced or furnished to the comp-in payment of interest due on their indebt
edness (the amounts of such payments are
troller of the state that any railroad coin-
pany has failed or refused to receive the set forth in the answer); and upon such pay-
state bonds or state treasury warrants at ment and receipt of the warrants by the
par for freight or passage at the rates estab-comptroller and treasurer they were canceled
lished by law, he is required to refuse to re-
ceive the state bonds or treasury warrants
for the interest due by said railroad upon its
bond.

as authorized and required by the above-
mentioned act; and thereupon the comptrol-
ler and treasurer issued the bonds of the
state bearing 6 per centum interest to the
special school fund for the amount so paid
by the railroad companies in treasury war-
rants. By reason of all of which it was al-

"Sec. 3. That the president of any railroad in this state be, and is hereby, required to post in a conspicuous place in the railroad offices and in the passenger cars the provi-leged that a valid and binding contract besions and terms of this act, under a penalty of $100, to be recovered for the benefit of the state by suit before any court of competent jurisdiction, upon information of any party."

On November 16, 1864, still another act was passed by the legislature which reads as follows:

"Be it enacted by the legislature of the state of Texas, that the railroad companies [71] of this state that are indebted *to the special school fund shall continue to be allowed the privilege of paying the interest due said fund in the treasury warrants and bonds and coupons of the state, and may also discharge the whole or any part of the principal of their indebtedness to that fund (in the same manner), provided such railroad companies shall satisfy the comptroller that the treasury warrants and bonds and coupons of the state are received by them at par with specie for freight and passenger travel.

"That all treasury warrants and bonds and coupons of the state, so received into the state treasury, shall be canceled; and the comptroller shall issue the bonds of the state, bearing 6 per cent interest, to the special school fund for the amount so paid in; and this act take effect from its passage.

tween the state and the railroad companies
was made, that the payments in treasury
warrants should be valid payments, at their
par value, upon the various loans made by
the state to the companies, and it was fur-
ther alleged that the payments by treasury
warrants had been received by the authori
ties of the state and canceled, and a credit
for the amount thereof as payment given to
the companies on the books of the state, and
that the transaction thereby became fully ex-
ecuted, and the *state could not thereafter (73)
dispute or question the validity of such pay-
ments or the right of the company to the
credits given it by the state.

It is also alleged that after the passage of the act of August 13, 1870, and about the 1st of November, 1870, the comptroller of the state, with the concurrence and approval of the governor, wrongfully and without authority of law, recharged each of the railroad companies respectively upon the books of the comptroller's office with the several amounts theretofore paid by them respectively in treasury warrants, and there was demanded from the respective companies on the 1st day of November, 1870, six months' interest and 1 per cent for the sinking fund on the aggregate amount of the loan, as made Upon the passage of these various acts and up by the comptroller, after striking out the in reliance upon the agreement and obliga-payments made by the company with the tion of the state, as evidenced thereby, the treasury warrants. These amounts two companies acquired treasury warrants paid under protest, as being illegally deupon good consideration, and after the pass-manded and resulting in a violation of the age of the act of May, 1864, they received contract existing between the companies and treasury warrants at par in payment of freight and passenger services rendered by uing to pay into the treasury of the state six months' interest, and 1 per cent on account of said sinking fund semiannually thereafter, to wit, on the 1st day of May and November in each year.

Sec. 2. That if any railroad company shall fail to pay any amount required to be paid in section one of this act at the time designated thereby, or within ten days thereafter, then the whole debt of such company, principal and interest, shall become due, and the governor shall proceed without delay to cause the railroad of sald company and its franchises and property, so far as the llen or mortgage of the state covers the same, to be sold, the sale to be in all respects (when not in conflict with this act) conducted according to the provisions of the statute of August 13, A. D. 1856: Provided, however, That In case the governor should (for the protection of the school fund) deem it necessary, he may buy in any road to be sold under this act, in the

were

the state. Payments on the same basis were continued semiannually from that time, acname of the state: Provided, further, That if the whole principal and interest which may become due as aforesaid, and all costs attending the advertisements and proposed sale, shall be paid before the day of sale, then the proceedings for sale shall be stopped.

Sec. 3. That the state of Texas will not exact of any railroad company not hereafter in default in respect to any of the payments required in this act the payment of the principal of the debt of said company, excepting said payments on account of the sinking fund as aforesaid, but that any company may pay the same in full at any time on thirty days' notice to the governor, and that said lien or mortgage of the state shall not attach to any extension of its existing road hereafter constructed by any of said companies. Sec. 4. That this act shall take effect from Approved, August 13, 1870. and after its passage.

078

companied by a protest similar to the one first mentioned, until, as the company contends, the full amount due by it to the state had been paid, provided the payments in treasury warants were credited as valid payments. Since that time the company has refused to make further payments. It claimed that the act of August 13, 1870, as construed by the state authorities, impaired the obligation of the contract existing between the state and itself, and thereupon it prayed for judgment.

To this pleading the plaintiff filed its first supplemental petition, and therein specially set up that the three several acts of the legislature of the state, mentioned in the defendant's answer as the authority for the payment upon the bonds of the company in treasury warrants, were unconstitutional and void, because (1) the warrants in which payments were authorized to be made were issued for the purpose of being circulated as money and were in violation of the state Constitution; (2) also because they were bills of credit emitted by the state, and therefore in violation of section 10 of article 1 of the

Constitution of the United States; and (3) [73] because the acts under which the warrants were authorized to be paid, together with other acts passed at or about the same time, plainly indicated that the treasury warrants and other obligations in which payments were authorized to be made, and which were made by the defendant, were issued in aid of the Rebellion against the United States of America, and were therefore void.

Upon these pleadings a motion was made by the company to remove the case to the United States circuit court, on the ground that by the filing of the plaintiff's last abovementioned pleading it became apparent for the first time, from plaintiff's statement of its own claim, that the case was one arising under the Constitution or laws of the United States, and defendant was therefore entitled to a removal. The motion was denied, and although further pleadings were thereafter served on each side they are not material to the matters discussed in the opinion.

state Constitution, as paper intended to cir culate as money. A writ of error was applied for to the supreme court of Texas, and by that court refused. The company then brought the case here by writ of error to the court of civil appeals. The defendant in error has made a motion to dismiss the writ on the ground that this court has no jurisdiction, for reasons stated in the opinion.

Messrs. R. S. Lovett and John G. CarP. Blair and Maxwell Evarts, filed a brief lisle argued the cause and, with Messrs. J. for plaintiffs in error:

To warrant the removal of a cause to a Federal court as one arising under the Constitution of the United States, it is not necessary that it should so appear from the first pleading filed by plaintiff. It is sufficient if it appears in a subsequent pleading, so long as that subsequent pleading is a pleading of the plaintiff and it is clear that the plaintiff invokes the aid of the Constitution and laws of the United States in order to sustain his

case.

Smith v. Greenhow, 109 U. S. 669, 27 L. ed. 1080, 3 Sup. Ct. Rep. 421; Cooke v. Avery, 147 U. S. 375, 37 L. ed. 209, 13 Sup. Ct. Rep. 340.

When a case is brought here by writ of error to the highest court of a state, upon the ground that the obligation of a contract has been impaired by a subsequent act of the legislature of the state, this court will examine and determine for itself whether there is in fact a contract, and is not in any way bound by the decision of the state court in that regard.

McCullough v. Virginia, 172 U. S. 102, 43 L. ed. 382. 19 Sup. Ct. Rep. 134; Northwestern University v. Illinois, 99 U. S. 309, 25 L. ed. 387; Proprietors of Bridges v. Hoboken Land & Improv. Co. 1 Wall. 116, 17 L. ed. 571; Fisk v. Jefferson Police Jury, 116 U. S. 131, 29 L. ed. 587, 6 Sup. Ct. Rep. 329; Louisville & N. R. Co. v. Palmes, 109 U. S. 244, 27 L. ed. 922, 3 Sup. Ct. Rep. 193; Piqua Branch of State Bank v. Knoop, 16 How. 369, 14 L. ed. 977: Jefferson Branch Bank v. The case was tried without a jury, there Skelly, 1 Black, 436, 17 L. ed. 173; Columbia being no dispute as to the facts. The trial Water Power Co. v. Columbia Electric Street court held that the payments in treasury R. Light & Power Co. 172 U. S. 475, 43 L. ed. warrants were illegal because they were is 521, 19 Sup. Ct. Ren. 247; Delmas v. Mersued to circulate as money, in violation of chants' Ins. Co. 14 Wall. 661, 20 L. ed. 757; the Constitution of the state. It also held Wright v. Nagle, 101 U. S. 791, 25 L. ed. that they were issued, or at least some of 921; New Orleans Waterworks Co. v. Louisthem were issued, in direct aid of the Rebel-iana Sugar Ref. Co. 125 U. S. 18. 31 L. ed. lion, and were therefore void; that the burden rested with the defendant to show, if it could, which, if any, of the warrants were valid. Judgment was given in favor of the state.

The company then appealed to the court of civil appeals for the third supreme judicial district of the state. where the judgment was modified so as to render no personal judgment against the company, and to foreclose the lien of the state only upon that part of the road which the findings showed was in existence on August 13, 1870, and as thus modified it was affirmed, solely on the ground that the warrants were issued in violation of the

607, 8 Sup. Ct. Rep. 741: Mobile & O. R. Co.
v. Tennessee, 153 U. S. 486, 38 L. ed. 793, 14
Sup. Ct. Rep. 968; Shelby County v. Union
& P. Bank, 161 U. S. 149, 40 L. ed. 650, 16
Sup. Ct. Rep. 558; Chicago, B. & Q. R. Co.
v. Nebraska ex rel. Omaha, 170 U. S. 57,
L. ed. 948, 18 Sup. Ct. Rep. 513.

42

Warrants drawn by the comptroller upon the treasurer, in conformity with the prac tice prescribed by law since the creation of the state government, for the purpose only of paying appropriations duly made by the legislature, and in accordance with the only method prescribed by law for disbursing the funds of the state, cannot be deemed bills of

177 U. S.

1899.

credit, or considered as issued with the in- | Federal question appears from the plainti
tention that they should circulate as money. statement of his own cause of action.
Tennessee v. Union & P. Bank, 152 U. S.
Briscoe v. Bank of Kentucky, 11 Pet. 257,
318, 9 L. ed. 709, 733, 928; Poindexter v. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654;
Greenhow, 114 U. S. 270, 29 L. ed. 185, 5 Hanrick v. Hanrick, 153 U. S. 197, 38 L. ed.
Sup. Ct. Rep. 903, 962; Craig v. Missouri, 4687, 14 Sup. Ct. Rep. 835; Chappell v. Water-
Pet. 410, 7 L. ed. 903; Pagaud v. State, 5 worth, 155 U. S. 108, 39 L. ed. 87, 15 Sup. Ct.
Smedes & M. 491; Gowen v. Shute, 4 Baxt. Rep. 34; Postal Teleg. Cable Co. v. United
57; Central Bank v. Little, 11 Ga. 346; Ram-States, 155 U. S. 487, sub nom. Postal Teleg.
sey v. Cox, 28 Ark. 366.

Cable Co. v. Alabama, 39 L. ed. 232, 15 Sup.
Ct. Rep. 192; East Lake Land Co. v. Brown,
155 U. S. 488, 39 L. ed. 233, 15 Sup. Ct. Rep.
357; Mexican Nat. R. Co. v. Davidson, 157

Regardless of the form of the warrants and the validity of the legislative acts, the warrants surrendered to the state by the railroad company represented valid obliga-U. S. 208, 39 L. ed. 675, 15 Sup. Ct. Rep. tions of the state; and their delivery to, and acceptance by, the state were lawful pay. ments in execution of the contract.

Bond Debt Cases, 12 S. C. 200; Planters' Bank v. Union Bank, 16 Wall. 483, 21 L. ed. 473.

Whether the warrants were unconstitutional or not, they had a market value, and it was a damage to the railroads to receive them at par and to surrender them to the state. Such damage, therefore, constituted a good consideration for the contract be tween the state and the railroads, and is entirely unaffected by the constitutionality or unconstitutionality of the warrants.

Hendrick v. Lindsay, 93 U. S. 143, 23 L. ed. 855; Violett v. Patton, 5 Cranch, 142, 3 L. ed. 61; Townsley v. Sumrall, 2 Pet. 170, 7 L. ed. 386; Thorington v. Smith, 8 Wall. 1, 19 L. ed. 361; Delmas v. Merchants' Ins. Co. 14 Wall. 665, 20 L. ed. 759; Effinger v. Kenney, 115 U. S. 566, 29 L. ed. 495, 6 Sup. Ct. Rep. 179; Dull v. Gordon, 24 La. Ann. 478; Little Rock v. Merchants' Nat. Bank, 98 U. 8. 308, 25 L. ed. 108.

Even the supreme court of Texas always upheld such transactions prior to this case. Van der Hoven v. Nette, 32 Tex. 183; Ritchie v. Sweet, 32 Tex. 333, 5 Am. Rep. 245; Piegzar v. Twohig, 37 Tex. 225; Allen ▼. Baker, 39 Tex. 220; Long v. Walker, 47 Tex. 173. See also Burleson v. Cleveland, 32 Tex. 397; Rodgers v. Bass, 46 Tex. 505; San Patricio County v. McClane, 44 Tex. 392; Roberts v. Schultz, 45 Tex. 184; Dull v. Gordon, 24 La. Ann. 478; Brown v. Jacobs, 24 La. Ann. 526.

If the treasury warrants are unconstitutional and the consideration of the contract illegal, it being an executed contract the parties must stand by it, and can get no relief. Hill v. Freeman, 73 Ala. 200, 49 Am. Rep. 48; Hutchins v. Weldin, 114 Ind. 80, 15 N. E. 804; Davis v. Leonard, 69 Ind. 213; Raguet v. Roll, 7 Ohio, pt. 2, p. 70; Roll. Raguet, 4 Ohio, 400, 22 Am. Dec. 759; Brown v. Tarkington, 3 Wall. 377, 18 L. ed. 255.

Even if the original contract was illegal, such illegality did not affect the implied contract resulting therefrom.

Planters' Bank v. Union Bank, 16 Wall. 483, 21 L. ed. 473; Brooks v. Martin, 2 Wall. 70. 17 L. ed. 732.

Mr. Charles A. Culberson argued the cause and filed a brief for defendant in er

ror:

It is well settled that a cause is not now removable to the Federal courts unless the U. S.. Book 44.

563; United States v. American Bell Teleph. Co. 159 U. S. 553, 40 L. ed. 257, 16 Sup. Ct. Rep. 69; Oregon Short Line & U. N. R. Co. v. Skottowe, 162 U. S. 495, 40 L. ed. 1050, 16 Sup. Ct. Rep. 869; Pratt v. Paris Gaslight & Coke Co. 168 U. S. 258, 42 L. ed. 459, 18 Sup. Ct. Rep. 62; Galveston, H. & S. A. R. Co. v. Texas, 170 U. S. 236, 42 L. ed. 1020, 18 Sup. Ct. Rep. 603; Sawyer v. Kochersperger, 170 U. S. 303, 42 L. ed. 1046, 18 Sup. Ct. Rep. 946.

The interposition to the defense of payment, that the warrants were issued in contravention of the Federal Constitution, would not give the circuit court original jurisdiction, even though in the course of the litigation it may have been necessary to construe the Federal Constitution on that point.

Little York Gold-Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. ed. 656; Tennessee v. Union & P. Bank, 152 U. S. 460, 38 L. ed. 513, 14 Sup. Ct. Rep. 654; New Orleans v. Benjamin, 153 U. S. 411, 38 L. ed. 764, 14 Sup. Ct. Rep. 905; Fergus Falls v. Fergus Falls Water Co. 36 U. S. App. 480, 72 Fed. Rep. 875, 19 C. C. A. 212.

This court will not pass upon the character or existence of a contract unless the judgment of the state court gives effect to a subsequent law of the state.

Bacon v. Texas, 163 U. S. 219, 41 L. ed. 137, 16 Sup. Ct. Rep. 1023; Douglas v. Kentucky, 168 U. S. 502, 42 L. ed. 557, 18 Sup. Ct. Rep. 199; Chicago, B. & Q. R. Co. v. Nebraska ex rel. Omaha, 170 U. S. 68, 42 L.. ed. 952, 18 Sup. Ct. Rep. 513; Walla Walla v. Walla Walla Water Co. 172 U. S. 9, 43 L. ed. 345, 19 Sup. Ct. Rep. 77; McCullough v. Virginia, 172 U. S. 116, 43 L. ed. 387, 19 Sup. Ct. Rep. 134; Columbia Water Power Co. v. Columbia Electric Street R. Light & Power Co. 172 U. S. 485, 43 L. ed. 524, 19 Sup. Ct. Rep. 247; Turner v. Wilkes County Comrs. 173 U. S. 463, 43 L. ed. 768, 19 Sup. Ct. Rep. 464.

The decision was based wholly upon the ground that the warrants and notes in which payment of the debt sued on purports to have been made were issued in violation of the state Constitution. This is purely a question of state law, and under all the authorities this court is without jurisdiction.

Knox v. Exchange Bank, 12 Wall. 379, 20 L. ed. 414; Klinger v. Missouri, 13 Wall. 263, 20 L. ed. 637; McManus v. O'Sullivan, 91 U. S. 579, 23 L. ed. 390; Bolling v. Lersner, 91 U. S. 594, 23 L. ed. 366; Crossley v. New Orleans, 108 U. S. 105, 27 L. ed. 667, 2 43

677

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