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judgment of the district court, (28 Pac. Rep. 773,) and thereupon the Aztec Mining Company sued out a writ of error in this court to the supreme court of the territory, and duly filed the transcript of the record, and caused the case to be docketed in this court. The defendant in error, John W. Ripley, now files a inotion to dismiss the writ on the ground that this court does not have jurisdiction, and cannot review the proceedings and judgment had in the supreme court of the territory in this cause.
The jurisdiction of the circuit courts of appeal to review the judg. ments and decrees of the supreme courts of the territories is con. ferred by the fifteenth section of the act of March 3, 1891, which reads as follows:
“That the circuit courts of appeal, in cases in which the judgments of the circuit courts of appeal are made final by this act, shall have the same appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and de. crees of the supreme courts of the several territories as by this act they may have to review the judgments, orders, and decrees of the district court and circuit courts; and for that purpose the several territories sball, by orders of the supreme court, to be made from time to time, be assigned to particular circuits.”
By order of the supreme court, the territory of New Mexico has been assigned to this circuit, and this court therefore possesses over the decrees and judgments of the supreme court of that territory the jurisdiction that is conferred by the section of the act of March 3, 1891, above cited. This section expressly limits the appellate jurisdiction of this court to cases in which the judgment of this court is made final by the provisions of the act of March 3, 1891. Section 6 of that act enacts that "the judginents or decrees of the circuit courts of appeal sha final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens or citizens of the United States, or citizens of different states; also in all cases arising under the patent laws, under the revenue laws, and under the criminal laws, and in admiralty cases."
The case at bar does not come within any one of the classes wherein the judgment of this court is declared to be a finality. It is not a case in admiralty, nor does it arise under the criminal, revenue, or patent laws of the United States, nor is it a case between aliens and citizens of the United States, or between citizens of different states; and therefore it does not belong to any of the classes of cases in which this court is clothed with appellate jurisdiction. On behalf of the plaintiff in error it is argued that the words, “in cases in which the judgments of the circuit courts of appeal are made final by this act,” must have been inserted in section 15 of the act of March 3, 1891, through some mistake or clerical error, and should therefore be disregarded. It is evident that, unless these words are stricken from the section, it cannot be successfully claimed that this court can take jurisdiction in the case, and hence counsel are driven to the necessity of arguing that the court must wholly disregard the portions of the section which define and limit the classes of cases in which appellate jurisdiction is conferred. No argument is needed to show that such a method of construing the statute is wholly inadmissible. It is true, as argued by counsel, that, if it be held that
this court has not appellate jurisdiction in this class of cases, then the larger part of causes pending in the territorial courts cannot be appealed either to the supreme court of the United States or to the circuit courts of appeal, but in that respect the residents of the territories are only placed on an equal footing with the citizens of the several states. In the larger number of cases brought in the courts of the state, the only appeal is to the supreme court of the state, and in the territory of New Mexico there is a supreme court to which an appeal lies the same as in the several states. On the other hand, if it should be held that this court can take jurisdiction in this class of cases over the decrees and judgments of the supreme court of the territory of New Mexico, the judgment of this court would not be final, under the provisions of section 6 of the act of March 3, 1891, and thus a case not involving any question arising under the constitution or laws of the United States could be carried first to the supreme court of the territory, thence to the circuit appellate court, and thence to the supreme court of the United States. Certainly it was not the intent of congress, in adopting the act of March 3, 1891, to thus enlarge the right of appeal on behalf of the residents of the several territories.
According to the plain reading of section 6 of said act of March 3, 1891, the case at bar does not fall within any of the classes of cases in which this court is given appellate jurisdiction over the judgments or decrees of the supreme court of the territory of New Mexico, and the motion to dismiss for want of jurisdiction is there. fore sustained.
UNITED STATES v. NATIONAL EXCH. BANK OF MILWAUKEE.
(Circuit Court of Appeals, Seventh Circuit. October 11, 1892.) CIRCUIT COURT OF APPEALS—JURISDICTION-WRIT OF ERROR.
The United States circuit court of appeals bas no jurisdiction to review a judgment rendered before the act creating that court (26 St. at Large, c. 517) was passed, where the amount claimed was too small to give jurisdiction to the supreme court, since there is nothing in said act giving it a retrospective effect. Error to the Circuit Court of the United States for the Eastern District of Wisconsin. Dismissed.
Elihu Colman, for plaintiff in error.
Before GRESHAM, Circuit Judge, and BLODGETT and JENKINS, District Judges.
JENKINS, District Judge. This case was brought in the court below to recover of the defendant bank the sum of $1,259.05, and upon the trial, and on the 2d day of February, 1891, judgment was rendered in favor of the defendant bank, (45 Fed. Rep. 163,) and writ of error to this court was sued out on the 29th day of July, 1891. The act creating this court was approved March 3, 1891, (26 St. c. 517.) At the time of the rendition of this judgment there existed no right to a review
thereof by an appellate court. The amount claimed was less than the minimum amount necessary to give the supreme court power to entertain such review. We are of opinion that this court is without jurisdiction to review this judgment. We find no language in the act indicating an intention to make it retroactive. Such statutes should be given only a prospective operation, unless a contrary intent is expressed in the act. U. S. v. Heth, 3 Cranch, 399; Mayor v. Schermerhorn, 1 N. Y. 423, 426; Burch v. Newbury, 10 N. Y. 374; In re Eager, 46 N. Y. 100; Railway Co. v. Judge, 10 Bush, 564; Rowell v. Railway Co., 59 N. H. 35; Vansittart v. Taylor, 4 El. & Bl. 910; In re Phoenix Bessemer Steel Co., 45 Law J. Ch. 11. Writ of error dismissed.
CARNEGIE, PHIPPS & CO., Limited, v. HULBERT et al.
A limited partnership organized under the laws of Pennsylvania, and em-
Action by Carnegie, Phipps & Co., Limited, against J. H. Hulbert, E. A. Blum, H. P. Drexel, Albert Foll, and E. J. Refregier, sureties on a bond given to prevent the filing of mechanics' liens, pursuant to section 4 of the act of the general assembly of Iowa, approved April 7, 1884, entitled "An act to protect subcontractors for labor performed and material furnished for public buildings and improvements." Judgment for defendants. Plaintiff brings error. Reversed.
Westel W. Morsman, J. M. Junkin, and Smith McPherson, for plaintiff in error.
B. G. Burbank, for defendants in error Drexel and Foll.
Brome, Andrews & Sheean filed brief for defendants in error Hulbert and Blum.
Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge.
CALDWELL, Circuit Judge. This action was brought in the cir. cuit court of the United States for the district of Nebraska. A demurrer to the complaint was sustained, and judgment rendered for the defendants, and thereupon the plaintiff sued out this writ of error. The case has been argued upon its merits, but, upon looking into the record, it appears the following is the only jurisdictional averment in the complaint relating to the citizenship of the plaintiff:
"The plaintiff, Carnegie, Phipps & Co., Limited, a copartnership organized under and created by the laws of the state of Pennsylvania, and by the laws of said state of Pennsylvania authorized and empowered to sue and be sued in its copart
pership name, respectfully represents that said copartnership is engaged in, and Las its principal place of business in, the city of Pittsburgh, and state of Pennsylvania, and is a citizen of said staté.
This averment does not show a case of which the circuit court could take jurisdiction. The allegation is that the plaintiff is a copartnership created by the laws of the state of Pennsylvania, and not a corporation. A copartnership is not a corporation, and cannot be a citizen of a state, within the meaning of the statutes regulating the jurisdiction of the circuit court. By force of the decisions of the supreme court, the stockholders of a corporation, for the purpose of determining the jurisdiction of the federal courts in suits to which the corporation is a party, are conclusively presumed to be citizens of the stato by whose laws the corporation was created. Railroad Co. v. Wheeler, 1 Black, 286; Bridge Co. v. Shepherd, 20 How. 227. But no such presumption obtains as to the members of a copartnership. The fact that, by the laws of the state of Pennsylvania, this copartnership is authorized to sue in its copartnership name in that state, does not authorize it to sue in the federal court as a citizen of that state. Chapman v. Barney, 129 U. S. 677, 682, 9 Sup. Ct. Rep. 426. When a copartnership sues, the citizenship of the partners composing it must be averred, and must be such as to confer the jurisdiction. For aught that appears in the record, the members of the copartnership and the defendants may be citizens of the same state. The judgment of the circuit court is reversed, for want of jurisdiction, at the costs of the plaintiff in error, and the cause remanded, with directions to that court to dismiss it unless the plaintiff shall amend its complaint to show jurisdiction.
THE PILOT v. UNITED STATES.
DUNSMUIR v. BRADSHAW, Collector of Customs.
Nos. 30, 31.
The treaty between the United States and Great Britain of June 15, 1846, fixes the boundary between the two countries in the straits of San Juan de Fuca by a line following the middle of the strait; but the same treaty secures to each nation a right of free navigation over all the waters of the strait. Rev. St. $ 4370, imposes a penalty against foreign tugs towing American vessels from one American port to another except where the towing, in whole or in part, is on foreign waters. Held, that the circuit court of appeals has juris. diction of an appeal from a decree in adiniralty holding that the waters north of the boundary established by the treaty are not “foreign waters," within the meaning of the statute, since neither the validity nor the construction of the treaty is drawn in question, so as to require that the appeal should be to the supreme court, under the judiciary act of March 3, 1891, § 5, subd. 5, (26 St. at Large, p. 826.) Appeals from the District Court of the United States for the Northern Division of the District of Washington.
In Admiralty. Libel by the United States against the British steam tug Pilot for towing an American vessel between American ports, in violation of Rev. St. § 4370. A decree for libelants was entered in the district court. 48 Fed. Rep. 319. Joan Olive Dunsmuir, owner of the Pilot, appealed to this court, and the decree was reversed. 50 Fed. Rep. 437, 1 C. C. A. 523. Libelant now moves to vacate the decree of reversal, and to dismiss the appeal, on the ground that under 26 St. at Large, c. 517, § 5, subd. 5, the circuit court of appeals had no jurisdiction of the case. Denied.
Also, a libel by Joan Olive Dunsmuir, owner of the British steam tug Lorne, against Charles M. Bradshaw, collector of customs of the United States for the district of Puget sound, to recover money paid by her under protest in order to release the Lorne from a seizure made to enforce a fine for violation of Rev. St. § 4370. In this case the libel was dismissed, libelant appealed, and the decree was reversed. 50 Fed. Rep. 440, 1 C. C. A. 525. The libelee now moves to vacate the decree of reversal, and to dismiss libelant's appeal, on the ground that under 26 St. at Large, c. 517, § 5, subd. 5, the circuit court of appeals had no jurisdiction of such appeals. Denied.
Rev. St. § 4370 provides: “All steam tugboats, not of the United States, found employed in towing documented vessels of the United States, plying from one port to another, shall be liable to a penalty of fifty cents per ton on the measurement of every such vessel so towed by them, respectively, which sum shall be recovered by way of libel or suit. This section shall not apply to any case wbere the towing, in whole or in part, is within or upon foreign waters. The treaty between the United States and Great Britain of June 15, 1846, fixes the boundary between the two countries in the straits of San Juan de Fuca by a boundary line following the middle of the strait, and also secures to each a right of free navi. gation over the entire waters of the strait. 26 St. at Large, c. 517, S 5, subd. 5, provides that “appeals or writs of error may be taken from the district court or from the existing circuit courts direct to the supreme court, in any case in which the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority, is drawn in question.”
Burke, Shepard & Woods, for appellants.
Before McKENNA and GILBERT, Circuit Judges, and MORROW, District Judge.
PER CURIAM. It is perfectly clear that the validity of the treaty was not “drawn in question." The case, upon the facts, simply called for a construction of section 4370, Rev. St. U. S., as to what was meant by the words “foreign waters." No rights were directly claimed under the treaty. No question of the jurisdiction of either nation over the waters of the straits, on either side of the boundary line, was involved. The question of the construction of the treaty, if raised at all, was only incidental, as to a question of fact not denied by either party, to wit, the right of both nations to have free and open navigation over the waters of the straits. The statute of the United States was to be construed with reference to the existing state of facts under the treaty. No direct question as to the construction of the treaty was raised. The treaty established a boundary line between the United States and Great Britain, and gave each nation the right of free navigation. These were facts proper to be considered, and were not in any manner disputed or drawn in question. The question and the only question—was whether, upon such admitted