The

facts are in many respects similar to the facts in this case. debts of the complainants are not disputed, but are admitted in the pleadings, but are claimed to be simple contract debts. The demurrer will be overruled.

To the plea filed in this cause there is no replication, and in such case all the facts well pleaded are considered as admitted. See rule 33, Equity Rules, and notes thereto; Desty, Fed. Proc. 696; rule 38, Equity Rules, and notes thereto; Desty, Fed. Proc. 698; Fost. Fed. Prac. (2d Ed.) p. 270, § 157; Rhode Island v. Massachusetts, 14 Pet. 210. The plea shows that at the time this suit was instituted there was pending in the circuit court of Washington county, Va., a chancery suit instituted on the 25th day of January, 1894, by the trustees in the deed of trust of August 5, 1893, against the Bank of Abingdon and all of its stockholders and creditors, including the complainants, for the purpose of administering the assets of said bank, under the direction and with the aid of said state court. It shows that the state circuit court of Washington county, Va., is a court of concurrent jurisdiction with this court, and that said suit is still pending therein; that, by the institution of that suit, the issuance and execution of process, the jurisdiction of the state court had attached to the parties and to the subject-matter of that suit; and that this court is without jurisdiction as to the matters involved in the state court, because of the prior existence of a suit in the state court involving the same matters. The question raised by the plea is one that has been so often determined by the courts, federal and state, that we should have no difficulty in deciding it in the present

case.

In Taylor v. Taintor, 16 Wall. 370, the supreme court, speaking by Justice Swayne, said:

"Where a state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed, and the jurisdiction invoked is exhausted; and this rule applies alike in both civil and criminal cases. It is, indeed, a principle of universal jurisprudence that, where jurisdiction has attached to person or thing, it is, unless there is some provision to the contrary, exclusive in effect until it has wrought its functions."

In Gaylord v. Railroad Co., 6 Biss. 286, Fed. Cas. No. 5,284, the court said:

"We think that there is no other safe rule to adopt in our mixed system of state and federal jurisprudence than to hold that the court which first obtains jurisdiction of the controversy, and thereby of the res, is entitled to retain it until the litigation is settled."

The supreme court of Illinois has said:

"As a general principle, in all cases of concurrent jurisdiction, the tribunal which first obtains jurisdiction of the subject-matter must proceed and finally dispose of it." Mason v. Piggott, 11 Ill. 88.

Case in Vermont:

"We hold it to be a sound rule of law, based upon the most salutary principle, that in all cases of concurrent jurisdiction the court that has first possession of the matter should be left to decide it, unless there exists some peculiar equitable ground for withdrawing a controversy from a court of law to a court of chancery, and which disenables the party having the law in

his favor from bringing his case fairly and fully before a court of law. This principle is founded upon the courtesy which courts of concurrent jurisdiction should exercise towards each other, and may be necessary, as matter of policy, to prevent a conflict in the action of different courts." Bank of Bellows Falls v. Rutland & B. R. Co., 28 Vt. 477.

The supreme court of Maryland:

"When two courts have concurrent jurisdiction over the same subject-matter, the court in which the suit is first commenced is entitled to retain it. This rule would seem to be vital to the harmonious movement of courts whose powers may be exerted within the same spheres, and over the same subjects and persons. * * * Any other rule will unavoidably lead to perpetual collisions, and be productive of the most calamitous results." Brooks v. Delaplaine, 1 Md. Ch. 354.

A very full and able discussion of this question is found in the opinion of Justice Field in Sharon v. Hill, 36 Fed. 337. See, also, Ward v. Todd, 103 U. S. 327; Smith v. M'Iver, 9 Wheat. 532; Shelby v. Bacon, 10 How. 56; Freeman v. Howe, 24 How. 450. The court, in addition to the authorities cited, calls attention to section 720 of the Revised Statutes of the United States, which says a writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except where such injunction is authorized by any law relating to proceedings in bankruptcy. A recent case decided by the circuit court of appeals of the Fifth circuit, in a case coming up from the Eastern district of Louisiana, holds that the prohibition in section 720 of the Revised Statutes extends to all cases over which the state court first obtains jurisdiction, and applies, not only to injunctions aimed at the state court itself, but also to injunctions issued to all parties before the court, its officers, or litigants therein. See Whitney v. Wilder, 4 C. C. A. 510, 54 Fed. 554, 555, and authorities there cited.

The rule to show cause must be dismissed, and the order heretofore entered in this cause, appointing a temporary receiver and granting a restraining order, must be vacated.

HASTINGS, Atty. Gen., et al. v. AMES et al. SAME v. SMITH et al. SAME v. HIGGINSON et al.

(Circuit Court of Appeals, Eighth Circuit. June 7, 1895.)

Nos. 590-592,

CIRCUIT COURTS OF APPEALS-JURISDICTION-CONSTITUTIONAL QUESTIONS. Certain stockholders of railway companies operating lines in Nebraska brought suits against the members of a state board of transportation to restrain them from putting in force a schedule of freight rates prescribed by Laws Neb. 1893, c. 24, on the grounds that such act violated the fourteenth amendment of the constitution of the United States, and also certain provisions of the constitution of Nebraska. The circuit court found that the rates were unreasonable, and that the act accordingly violated the fourteenth amendment, but overruled the other grounds of objection. From the decrees enjoining the enforcement of the act, the members of the board appealed. Held, that such appeals were within the jurisdiction of the supreme court, as defined by the act of March 3, 1891, c. 517, § 5, subd. 6 (26 Stat. 826), and were therefore not within the jurisdiction of the circuit court of appeals.

Appeal from the Circuit Court of the United States for the District of Nebraska.

John L. Webster, A. S. Churchill, and W. A. Dilworth filed brief for appellants.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER, Circuit Judge. These cases have been submitted to obtain a decision of the question whether this court has jurisdiction by appeal to review the final decrees therein which were rendered by the circuit court of the United States for the district of Nebraska. The several appellees above named, to wit, Oliver Ames et al., George Smith et al., and Henry L. Higginson et al., claiming to be stockholders, respectively, of the Union Pacific Railway Company, the Chicago & Northwestern Railway Company, and the Chicago, Burlington & Quincy Railroad Company, filed separate bills of complaint against the said companies, respectively, and against the appellants, George H. Hastings, attorney general of the state of Nebraska, John C. Allen, secretary of state, Eugene Moore, auditor of public accounts, Joseph F. Bartley, state treasurer, A. R. Humphrey, commissioner of public lands and buildings, who together constituted a board of transportation for the state of Nebraska, and against William A. Dilworth, J. M. Kountze, and J. W. Johnson, secretaries of said board, to restrain the publication and the putting in force of a certain schedule of freight rates theretofore prescribed by the legislature of the state of Nebraska, by an act passed on April 12, 1893, entitled "An act to regulate railroads, to classify freights, to fix reasonable maximum rates to be charged for the transportation of freight upon each of the railroads in the state of Nebraska, and to provide penalties for the violation of this act." Laws Neb. 1893, p. 164, c. 24.

The several bills, which were each of the same general tenor and effect, charged, in substance, that the aforesaid act was repugnant to the fourteenth amendment of the constitution of the United States, and was therefore null and void, in that it denied the several railroad companies to which it was made applicable "the equal protection of the laws," and deprived them of their property "without due process of law." It was also alleged in the bills, in substance, that the aforesaid act was inoperative and void, for the reason that it was not read at large in each house composing the legislature of the state of Nebraska on three different days, as the constitution of that state requires (section 11, art. 3, Const. Neb.), and for the further reason that the bill as enrolled and signed by the governor of the state differed radically from the measure that was actually passed by the legislature, so that the act which was adopted by the legislature was not in fact signed by the governor of the state, and had not become a law. The circuit court overruled all of the objections to the law that were based on the ground that it had not been duly enacted in the mode prescribed by the constitution of the state, but it found that the act prescribed a schedule of rates that

were unreasonable and unjust. It thereupon enjoined the appellants from putting said schedule of rates in force, on the ground that the enforcement of the same in the mode provided by the act would deprive the defendant corporations of "the equal protection of the laws" guarantied by the fourteenth amendment of the constitution of the United States, which guaranty, as the court said, "forbids legislation, in whatever form it may be enacted, by which the property of one individual is, without compensation, wrested from him for the benefit of another or of the public." Ames v. Railway Co., 64 Fed. 165, 173. See, also, Reagan v. Trust Co., 154 U. S. 362, 399, 14 Sup. Ct. 1047.

It is manifest, therefore, that the suits at bar are cases in which it was claimed that a law of a state contravenes the constitution of the United States. The relief prayed for by the plaintiffs was predicated on the express ground that the statute which the appellants were about to enforce was in violation of the federal constitution, and the relief sought was granted by the circuit court on that ground and for no other reason. The cases accordingly fall within the purview of the sixth subdivision of section 5 of the act of March 3, 1891 (26 Stat. 826, c. 517), which declares that appeals may be taken to the supreme court in the following cases: "(6) In any case in which the constitution or law of a state is claimed to be in contravention of the constitution of the United States." In opposition to this view it has been suggested that the question which arises on these appeals is simply whether the rates prescribed by the Nebraska statute are unreasonable and unjust, and that this is not a constitutional question, but an ordinary issue of fact. It is true, no doubt, that the issue is one of fact; but a finding is required upon that issue solely for the purpose of deciding the ultimate question, which arises in the several suits, whether the state statute prescribing the rates is constitutional or otherwise. When the validity of a statute is challenged on the ground that it violates the organic law, it is ordinarily the case that the question can be determined by a simple inspection of the statute; but it may hapDen, as in the present case, that it can only be determined in the light of extrinsic facts which serve to demonstrate the necessary effect and operation of the statute. Now, it matters not, as we think, how a decision in such cases is to be reached, whether it be by a simple comparison of the statute with those limitations upon legislative power which are imposed by the constitution, or by an investigation and decision of a preliminary issue of fact. If, in a given suit, the ultimate question involved is whether a state statute is void, either because it impairs rights that are guarantied by the federal constitution or because the legislature of a state has assumed to exercise powers that have been surrendered to the general government, then the case is one which does not fall within the appellate jurisdiction of this court. Railway Co. v. Evans, 7 C. C. A. 290, 19 U. S. App. 233, and 58 Fed. 433; Hamilton v. Brown, 3 C. C. A. 639, 2 U. S. App. 540, and 53 Fed. 753; City of Macon v. Georgia Packing Co., 13 U. S. App. 592, 60 Fed. 781, and 9 C. C. A. 262; U. S. v. Sutton, 2 C. C. A. 115, 47 Fed. 129.

The language of the act of March 3, 1891, which we have quoted above, is very comprehensive; sufficiently so, as we think, to withdraw from the jurisdiction of this court every case in which it is claimed, in good faith, that a state statute is in contravention of the federal constitution, even though it may be claimed in the same case that the state statute in question is invalid or inoperative on other grounds. This court has decided at the present term that, if a plaintiff predicates his right to relief on the provisions of an act of congress, the case is of federal cognizance as one arising under the constitution and laws of the United States, even though the same relief is sought on other grounds that do not involve the consideration of federal laws. St. Paul, M. & M. Ry. Co. v. St. Paul & N. P. Ry. Co., 68 Fed. 2. By a strong analogy, it may be said that a case is within the appellate jurisdiction of the supreme court, and not within the appellate jurisdiction of this court, if it is claimed that a law of a state is void because it contravenes the constitution of the United States, although its invalidity is asserted on other grounds as well, and although the case may involve the consideration of many other questions. It surely was not intended that the appellate jurisdiction of the supreme court should be limited to that class of cases where a constitutional question is the sole issue involved, but, even under that stringent rule, the supreme court of the United States would have jurisdiction of these appeals.

It follows from what has been said that the cases are not within the appellate jurisdiction of this court, and the several appeals are for that reason dismissed.

SNEED V. SELLERS et al.

(Circuit Court of Appeals, Fifth Circuit. April 23, 1895.)

No. 256.

COSTS ON APPEAL-DISMISSAL FOR WANT OF JURISDICTION BELOW.

When a judgment is reversed, and the cause ordered dismissed because the record failed to show jurisdiction, all the costs, both of the circuit court and of the appellate court, should be taxed against plaintiff.

In Error to the Circuit Court of the United States for the Northern District of Texas.

This was an action by John S. Sneed against A. F. Sellers and others to try title to real estate. The circuit rendered judgment on a verdict of a jury establishing a boundary line. The plaintiff brought error to this court, which, on December 11, 1894, reversed the judg ment, with instructions to dismiss the case. 13 C. C. A. 518, 66 Fed. 371. A motion is now made to have the judgment of reversal amended in respect to the costs.

S. H. Lumpkins, for plaintiff in error.

Robertson & Robertson, for defendants in error.

Before PARDEE and MCCORMICK, Circuit Judges, and BRUCE, District Judge.