[Nos. 233, 234, & 235.] tervene, that leave is denied, "not as matter | cases, praying for leave to intervene therein Decided Bubmitted February 26, 1900. See same case below, 62 U. S. App. 728, Statement by Mr. Justice Shiras: [811 *On October 9, 1893, Oliver Ames, 2d, and Samuel Carr, executors of Frederick L. Motion to dismiss or Messrs. Henry J. Taylor and John C. Coombs submitted the cause for appellants in Nos. 233, 234, 235: Even if the decree or order appealed from was within the discretion of the circuit court, and an exercise thereof, nevertheless the same would remain reviewable on appeal. Farmers' Loan & T. Co., Petitioner, 129 U. S. 206, 32 L. ed. 656, 9 Sup. Ct. Rep. 265. Ames, deceased, and Peter B. Wyckoff and ers. On January 21, 1895, a bill of complaint was filed in the said circuit court by F. Gordon Dexter and Oliver Ames, 2d, as trustees of the first mortgage of the Union Pacific Railway Company, to foreclose that mortgage. At the May term, 1897, the United States filed, in a circuit court of the United States for the eighth judicial circuit, a bill of complaint against the Union Pacific Railway Company, and against S. H. H. Clark, Oliver W. Mink, Ellery Anderson, John W. Doane, and Frederick R. Coudert, who had theretofore, on October 13, 1893, in the suit brought in said court by Oliver Ames, Samuel Carr, and [312]others against the said Union Pacific *Railway Company, been appointed receivers therefor, and against F. Gordon Dexter and Oliver Ames, as trustees, the Union Trust Company of New York, as trustee, J. Pierpont Morgan and Edwin F. Atkins, trustees, the Central Trust Company of New York, as trustee. The object of this bill was to secure a decree of foreclosure of the subsidy lien of the United States upon the property of the Union Pacific Railway Company between Council Bluffs, Iowa, and a point 5 miles west of Ogden, Utah. On April 28, 1897. the Credits Commutation Company, a corporation of the state of Iowa filed a petition in each of said three tions, and the decision therefore properly presents questions reviewable on appeal. Pittsfield Nat. Bank v. Bayne, 140 N. Y. 321, 35 N. E. 630; The New England, 3 Sumn. 495, Fed. Cas. No. 10,151; United States v. Thomas, 151 U. S. 577, 38 L. ed. 276, 14 Sup. Ct. Rep. 426; Mattox v. United States, 146 U. S. 140, 36 L. ed. 917, 13 Sup. Ct. Rep. 50; Haws v. Victoria Copper Min. Co. 160 U. S. 303, 40 L. ed. 436, 16 Sup. Ct. Rep. 282. The order of dismissal on its face expressly negatives the exercise of discretion, and shows that it is preceded by a determination and denial of the appellants' rights, and proceeds solely from such determination and denial. The order is therefore a final determination of the appellants' rights and is appealable. People ex rel. Smith v. Fire & Bldg. Dept. Comrs. 103 N. Y. 370, 8 N. E. 730, and cases cited. The very purpose of this sequestration was avowedly a final disposition of all rights, title, and assets. as completely as though the same constituted a mere fund in court. Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207. 34 L. ed. 97, 10 Sup. Ct. Rep. 736. To constitute a final judgment it is not essential that it should be a bar to another suit. Colorado Eastern R. Co. v. Union P. R. Co. 94 Fed. Rep. 312, 36 C. C. A. 263. Attorney General Griggs, Solicitor General Richards. and Mr. John C. Cowin 783 submitted the cause for appellee the United States in Nos. 233, 234: The decision in order to be reviewable must be final, and the act of Congress of March 3, 1891, establishing the circuit court of appeals, has made no change in this fundamental requirement. Mr. Justice Shiras delivered the opinion[312] of the court: The Credits Commutation Company and the Combination *Bridge Company, corpora-[313] tions of the state of Iowa, filed petitions for leave to intervene in three suits against the Union Pacific Railway Company. The oh. McLish v. Roff, 141 U. S. 661, 35 L. ed.ject of those suits was to enforce by foreclo893, 12 Sup. Ct. Rep. 118; Chicago, St. P. M. sure the payinent of bonds secured by mort& O. R. Co. v. Roberts, 141 U. S. 690, 35 L. gage and of a debt due to the United States ed. 905, 12 Sup. Ct. Rep. 123; American created by certain subsidy bonds, and, pendConstr. Co. v. Jacksonville, T. & K. W. R. ing such proceedings, the appointment of reCo. 148 U. S. 372, 37 L. ed. 486, 13 Sup. Ct.ceivers to prevent the disintegration of propRep. 758; Kirwan v. Murphy, 170 U. S. 205, 42 L. ed. 1009, 18 Sup. Ct. Rep. 592. The orders of the circuit court of the United States for the district of Nebraska denying the appellants leave to intervene were not final decisions of that court. Hence they were not appealable orders. This is perfectly well settled. erties of the railway_company. The Combination Bridge Company is the owner of a bridge across the Missouri river at Sioux City. The Credits Commutation Company is the owner of the stock of the bridge company, and also of interests in the capital stock of certain railroads connected by the said bridge. The petition alleges that United States v. Girault, 11 How. 22, 13 the Credits Commutation Company was orL. ed. 587; Dainese v. Kendall, 119 U. S. 53,ganized for the purpose of connecting said 30 L. ed. 305, 7 Sup. Ct. Rep. 65; Ex parte bridge and railroads with the Union Pacific Cutting, 94 U. S. 14, 24 L. ed. 49; Toledo, Railway. St. L. & K. C. R. Co. v. Continental Trust Orders granting or denying leave to intervene in pending cases are discretionary and hence not appealable. Decisions which rest in the judicial discretion of a court of original jurisdiction cannot be reviewed in an appellate court. The Union Pacific Railway Company is a consolidated company, composed of the Union Pacific Railroad Company and the Kansas Pacific Railway Company, and Congress, by the act of July 1, 1862, in order to "secure to the government the use of the same," conferred upon said companies grants of large and valuable tracts of the public lands, and further subsidized said companies by an advance to them of the public credit in the form of bonds of the United States. The 15th section of the said act of July 1, 1862, was in the fol Cook v. Burnley, 11 Wall. 672, 20 L. ed. 84; Ex parte Cutting, 94 U. S. 14, 24 L. ed. 49; Connor v. Peugh, 18 How. 394, 15 L. ed. 432; Hamlin v. Continental Trust Co. 47 U. S. App. 422, 78 Fed. Rep. 664, 24 C. C. 271,lowing terms: 36 L. R. A. 826; Re Streett, 8 U. S. App. 645, 62 Fed. Rep. 218, 10 C. C. A. 446; Smith v. Glasgow Invest. Co. 42 U. S. App. 105, 74 Fed. Rep. 332, 20 C. C. A. 432; United States v. Thomas, 151 U. S. 577, 38 L. ed. 276, 14 Sup. Ct. Rep. 426. Recitals by a court, in its order, of opinions of law or fact, or by way of inducement, are immaterial and give to such orders or decrees no different aspect or character for the purpose of review, or of determining whether they are reviewable. Such determination is to be governed solely by the essence of what is done, and not by the appellation given to it in the order. Corning v. Troy Iron & Nail Factory, 15 How. 451, 14 L. ed. 768; Potter v. Beal, 5 U. S. App. 49, 50 Fed. Rep. 860, 2 C. C. A. 60: Caverly v. Deere, 24 U. S. App. 617, 66 Fed. Rep. 309, 13 C. C. A. 452; Russell v. Kern, 34 U. S. App. 90, 69 Fed. Rep. 94, 16 C. C. A. 154; Evans v. Suess Ornamental Glass Co. 53 U. S. App. 567, 83 Fed. Rep. 708. 28 C. C. A. 24. Messrs. Winslow S. Pierce, William R. Kelly, and G. M. Lambertson submitted the cause for other appellees in Nos. 233, 234. Messrs. John F. Dillon and Lawrence Greer were with them on the brief. Messrs. Winslow S. Pierce, John F. Dillon, William R. Kelly, and G. M. Lambertson submitted the cause for appellees in No. 235. Mr. Lawrence Greer was with them on the brief. "And be it further enacted, That any other railroad company now incorporated, or hereafter to be incorporated, shall have the right to connect their road with the road and branches provided for by this act, at such places and upon such just and equitable terms as the President of the United States may prescribe. Wherever the word 'company is used in this act it shall be construed to embrace the words 'their associates, successors, and assigns,' as if the words had been properly added thereto." The petition alleges that the Credits Commutation Company was organized in the latter part of 1894, but admits that said company has abstained from making any appli cation to the President of the United States to fix the place at which, and the *just and[314) equitable terms upon which, said company should build a railroad to connect with the road of the Union Pacific Railway Company, because the latter company had been embarrassed and all its property was in the hands of receivers, and bills to foreclose in behalf of the holders of mortgage bonds and to enforce the creditor rights of the United States had been filed. It seems to be the theory of the petitioners that, under the provisions of the act of Congress, they have a right to connect their railroads, now or to be constructed, with the railroad of the Union Pacific Railway Company, and that they have, therefore, a right to intervene in the foreclosure proceedings, in order to pro tect their right to so connect and to protect coming into being at some unlimited time the right of the public in such railroad con- in the future." nections. The question was well considered by the As heretofore stated, the circuit court de-circuit court of appeals, and we quote and nied the petitions for leave to intervene, and adopt its statement, as follows: upon appeal to the circuit court of appeals that court dismissed the appeals. The view of the circuit court of appeals was that the order of the circuit court refusing leave to intervene was not a final judgment or decree from which an appeal could be taken, and that, at any rate, the action of the lower court in refusing leave to intervene was not reviewable on appeal, inasmuch as it rested in the sound discretion of the chancellor to admit or reject the intervention. 62 U. S. App. 728, 731, 91 Fed. Rep. 570, 571, 34 C. C. A. 12, 13. To show that the circuit court, in denying the petition for leave to intervene, was not exercising the usual discretion of a chancellor in passing upon a petition of an outside party for leave to intervene, but adjudicated the petitioners' rights asserted in the petitions, as if upon demurrer thereto, we are pointed to the languauge used: "Ordered, that the prayers of the petitioners for leave to intervene herein be and the same are hereby denied, not as matter of discretion, but because said petitions do not state facts sufficient to show that the petitioners, or either of them, have a legal right to intervene." It is urged that the circuit court declined to treat the subject as of one of discretion, and elected to determine the legal rights of the petitioners, so as to preclude them from resorting thereafter to some other tribunal, and that, therefore, its judgment was a final one and properly reviewable on appeal. [315] *We cannot accept this view of the meaning and effect of the order in question. What was sought in the petitions was leave to intervene in a pending and undetermined cause, and that right alone was determined. The very terms used by the court, that the facts stated were "not sufficient to show that the petitioners, or either of them, have a legal right to intervene," shows that what was considered was the right to intervene. That right refused, the petitioners were left free to assert such other rights as they might possess in any other tribunal. That this was the view of Judge Sanborn himself is seer in the following language of his opinion: "Whatever the petitioners' right or interest may be, it is nothing more than a contingent, speculative, future possibility. It is contingent, because it is conditioned upon the construction of a railroad. It is speculative, because it depends for its existence upon the question whether or not capitalists shall see sufficient profit in the construction of such a railroad to induce them to put in the necessary money for that purpose. It is future, because it has not yet come into existence, and it is possible, because it may come into existence. Courts of equity are not accustomed, perhaps they have not the power, to adjudicate upon possible rights which are not in being and which are merely susceptible of "When such action is taken, that is to say, when leave to intervene in an equity case is asked and refused, the rule, so far as we are aware, is well settled that the order thus made denying leave to intervene is not regarded as a final determination of the merits of the claim on which the intervention is based, but leaves the petitioner at full liberty to assert his rights in any other appropriate form of proceeding. Such an order not only lacks the finality which is necessary to support an appeal, but it is usually said of it that it cannot be reviewed, because it merely involves an exercise of the discretionary powers of the trial court. . . It is doubtless true that cases may arise where the denial of the right of a third party to intervene therein would be a practical denial [316] of certain relief to which the intervener is fairly entitled, and which he can only obtain by an intervention. Cases of this sort are those where there is a fund in court undergoing administration to which a third party asserts some right which will be lost in the event that he is not allowed to intervene before the fund is dissipated. In such cases an order denying leave to intervene is not discretionary with the chancellor, and will generally furnish the basis for an appeal, since it finally disposes of the intervener's claim by denying him all right to relief. The cases at bar, however, are not of that character. The petitioners were under no obligation to intervene in the litigation against the Union Pacific Railway Company to preserve their alleged right to form a junction with the road of that company when they should have completed their own road to a suitable junction point. The question which they sought to litigate in the pending litigation, could, we think, with more propriety and with less difficulty, have been litigated by an independent bill after they had completed, or were about completing, their line to a suitable junction point. Prior to that time the questions which they sought to raise by means of the intervening petitions were speculative questions, which the lower court, as we think, very properly, refused to consider or determine." In Connor v. Peugh, 18 How. 394. 15 L. ed. 432, it was said by Mr. Justice Grier, giving the opinion of the court: "On the 5th of June, 1885. the tenant in possession came into court for the first time, and moved to set aside the judgment and execution issued thereon, and to be allowed to defend the suit for reasons set forth in her affidavit. The court refused to grant this motion, 'whereupon the said Mary Ann Connor prayed an appeal.' "The tenant in possession having neglected to appear and have herself made defendant and confess lease, entry, and ouster, the judg ment was properly entered against the casual ejector. No one but a party to the suit can bring a writ of error. The tenant hav ing neglected to have herself made such cannot have a writ of error to the judgment against the casual ejector. The motion made afterwards to have the judgment set aside 1317]and for leave to intervene was an application to the sound discretion of the court. To the action of the court on such a motion no appeal lies, nor is the subject of a bill of exceptions or a writ of error.' quired-such as the sale for aggregate unpaid taxes of several years on a tract which had been assessed in separate parcels, or part of which had in some years not been assessed at all, and the failure to publish a proper notice of redemption-will not affect the validity of the tax title under N. Y. Laws 1885, chap. 418, after the expiration of the two years thereby prescribed, even if some of the defects are to be deemed jurisdictional, since the statute is not merely a curative one, but is a statute of limitations. [No. 94.] In Ex parte Cutting, 94 U. S. 14, 24 L. ed. Whether the contention of the petitioners April 9, 1900. Decided United States for the Northern District of New York to review a decision sustaining the constitutionality of a statute validating tax titles after lapse of a certain period of time. Affirmed. N ERROR to the Circuit Court of the See same case below, 83 Fed. Rep. 436. Statement by Mr. Justice McKenna: *This is an action of ejectment brought to[318. recover a tract of 7,500 acres of forest land," known as the northwest quarter of township 24, Great Tract One, Macomb's Purchase, situated in Franklin county, in the northern district of the state of New York. The plaintiff deraigned title by various mesne conveyances from one Daniel McCormick, who became the grantee of the state of New York in 1798. The defendant claims through deeds executed to the state of New York in pursuance of sales for taxes. The defendant also set up as a defense a Mr. Justice McKenna took no part in six months' statute of limitations contained the decision of the cases. in chapter 448 of a law enacted in 1885, certain statutes against champerty, the illegal organization of the plaintiff in error, and a former adjudication made on an ap [8.8]*SARANAC LAND & TIMBER COMPANY, plication to cancel one of the tax sales under Piff. in Err., V. which the state claimed title. The first sale upon which the title of the JAMES A. ROBERTS, as Comptroller of the state is based was made in 1877 for unpaid State of New York. (See S. C. Reporter's ed. 318-331.) Error to Federal court-effect of prior deci- 1. taxes of 1866 to 1877, inclusive. A certifi 1890 for those of 1881 to 1885. At all of the A decision by the Supreme Court of the dent in a later case on writ of error to a lower Federal court, on the theory that the for bids. Certificates and deeds were duly issued to the state in pursuance of the sale of 1881 and 1885 in due form, and duly recorded in the clerk's office of the proper coun A certificate alone was issued in pursuty ance of the sale of 1890. The taxes for the years 1866 and 1867 were 2. Any defects or irregularities in the pro-assessed against the whole quarter as one ceedings by which a tax title to land is ac- parcel. In the years 1868, 1869, and 1870 In the former case because it was bound in case the whole quarter was not assessed, and so | much of it as was assessed was placed upon the rolls in two parcels, and described as follows: "Township 24, Great Tract One, Macomb's Purchase; Ñ. W. 4, excepting 1,000 acres, lying in N. W. corner; also 1,215 acres which is water, leaving 5,285 acres. "Macomb's Purchase, Great Tract One, township 24, 1,000 acres, lying in the northwest corner of northwest quarter." There was evidence tending to show that on the tract in controversy there were bodies of water, but no part of them was within the parcel of 1,000 acres laid out in a square form in the northwest corner. In December, 1894, the defendant caused a notice to be published once a week for three successive weeks in a newspaper published in Franklin county, of which the fol· lowing is a copy: To Whom It May Concern: Notice is hereby given that the following is the list of wild, vacant forest lands located in the county of Franklin to which the state holds title, and that from and after three weeks from the 22d day of December, 1894, possession thereof will be deemed to be in the comptroller of this state, pursuant to the provisions of section 13 of chapter 711, Laws of 1893. William J. Morgan, Deputy Comptroller. [320] *The list attached to this notice contained the land in question. When the testimony in the case was closed the counsel for each of the respective parties, with the approval of the court, admitted that there was no question of fact in the case to be submitted to the jury; that the issues depended upon the construction that the court should give to the law; and thereupon the jury was discharged, and a written stipulation waiving a jury trial was signed by the attorneys of record for the respective parties, and filed with the clerk. The plaintiff requested the court to rule on certain propositions of law which were based on the assumption of the sale of the tract in one parcel for the aggregate unpaid taxes for several years, and claiming the following as jurisdictional defects in the sale, and not cured or validated by chapter 448 of the Laws of 1885, or chapter 711 of the Laws of 1893: The sale of the whole tract for taxes which were assessed against separate and distinct parcels of it: such sale when during one or more of the years a part of the tract was not assessed; such sale when some of the taxes were assessed against the whole tract and others against a part only; insufficiency of the description to identify and distinguish the parcel sold; that at the sale of 1881 the comptroller treated the property as that of the state, and struck it off to the state with out giving opportunity for other bids; and that chapter 448 of the Laws of 1885 was unconstitutional and void, and repugnant to the Fourteenth Amendment of the Constitution of the United States. These propositions of law the court re fused to affirm, and the court's action is assigned as error. It is also urged that it was error to admit in evidence, over the objection of plaintiff, the deed from the state made on the sale of 1881 conveying to the state two parcels of land in the northwest quarter of township 24 by the following description: "Macomb's Purchase, Great Tract One, township 24, northwest quarter, 5,285 acres, more or less, being all that remains of the said northwest quarter after excepting therefrom 1,000 acres in the northwest corner thereof, and 1,215 acres covered by water; 1,000 acres in the northwest corner of the northwest quarter." *Also in receiving in evidence the certifi-[3211 cate of sale issued on the sale of 1890, because it was not in evidence of a legal title. The assignments of error may, as is said in the brief of plaintiff in error, be reduced in a general way to two "First. Is chapter 448 of the Laws of New York of 1885 a valid and constitutional law when set up by the state in its own favor? "Second. Were the defects shown to exist in the tax sales, or either of them, of such nature as to be beyond the reach of that law if valid, accepting the construction which has been put upon it by the New York court?" The act referred to is inserted in the margin.t The circuit court found in favor of the state, basing its decision upon the constitutionality of chapter 448, following Turner v. New York, 168 U. S. 90, 42 L. ed. 392, 18 Sup. Ct. Rep. 38, and holding also the law to be curative of the defects urged against the validity of the tax sales. 83 Fed. Rep. 436. The complaint was filed January 25, 1895. The plaintiff sued out this writ of error. Laws 1885, Chapter 448. An Act to Amend Chapter Four Hundred and Twenty-seven of the Laws of Eighteen Hundred and Fifty-five, Entitled, "An Act in Relation to the Collection of Taxes on Lands of Nonresidents, and to Provide for the Sale of Such Lands for Unpaid Taxes." Sec. 1. Section sixty-five of chapter four hundred and twenty-seven of the laws of eigh teen hundred and fifty-five, entitled, "An Ac in Relation to the Collection of Taxes on Lands of Nonresidents, and to Provide for the Sale of Such Lands for Unpaid Taxes," is hereby amended so as to read as follows: "$ 65. Such conveyances shall be executed by the comptroller, under his hand and seal, and the execution thereof shall be witnessed by the treasurer or deputy comptroller, and all such conveyances that have been heretofore executed by the comptroller, and all conveyances of the same lands by his grantee or grantees therein named, after having been recorded for two years in the office of the clerk of the county in which the lands conveyed thereby are located, and all outstanding certificates of a tax sale heretofore held by the comptroller that shall have remained in force for two years after the last day allowed by law to redeem from such sale, shall, six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land and all notices required by law to be given previous to the expiration |