the plaintiff was a white man, a naturalborn citizen of the United States, and was such on November 6, 1900, and had been for many years prior thereto a resident and duly qualified voter in the county of Rhea, state of Tennessee, and, as such, entitled, under the Constitution and laws of the United States and of the state, to vote for members of Congress, and that he had been illegally deprived of such right by the defendants, when serving as election officers at an election held on November 6, 1900, in the district of the residence of the plaintiff, in said county of Rhea. of the special law, for the reason that the redistricting act of 1899 was absolutely void. The grounds upon which it was alleged that the act of 1899 redistricting Rhea county was void may be thus summarized: Because it was "class legislation in violation of the Federal Constitution," it being asserted that said law was enacted for partisan purposes, and that, although there were other counties in the state similarly situ ated as was Rhea county, the civil districts as laid out by the county courts in such other counties, pursuant to statutory authorThe declaration specified the manner in ity, were left undisturbed by the legislature. which the right which it was asserted ex- In other particulars, also, the act in quesisted under the Constitution and laws of the tion was averred to constitute special or United States and of the state had been vio-class legislation. It was specially averred lated, as follows: That for a number of that, as prior to the adoption of the 14th years there had been in force in Tennessee Amendment to the Constitution of the Unitcertain special registration and ballot laws, ed States, plaintiff enjoyed *the elective fran-[490] which were operative only in counties con- chise, by virtue of that amendment and of taining a population of 50,000 inhabitants enumerated provisions of the state Constituor over, and in cities, towns, and civil dis- tion "plaintiff became, and was, possessed tricts having a population of 2,500 inhabit- of the right of suffrage as an immunity or ants or over; that Rhea county was not, privilege of citizenship, of which he could prior to 1899, affected by the legislation in not be deprived by the enactment of chapquestion, because it did not have a popula- ter 163 (the law of 1899) under the circumtion of 50,000 or upwards, and had no town, stances aforesaid." city, or civil district within its borders con- The defendants filed a demurrer questiontaining a population of 2,500; that, not being the sufliciency of the declaration upon ing subject to the operation of the statutes various grounds. in question, the elections in Rhea county, as in other counties similarly situated, were governed by, and conducted in accordance with, the general election laws prevailing in the state of Tennessee; that in 1899 the legislature of Tennessee passed a law known as chapter 163 of 1899, by which the civil [489]* districts or subdivisions theretofore existing in Rhea county were diminished in number, and so arranged as to cause the civil district in which the plaintiff lived and was en titled to vote to contain a population of over 2,500 inhabitants, and therefore to become subject to the aforesaid special registration and election laws, if the redistricting law in question was valid. It was further averred that at the election held on November 6, 1900, for a member of Congress, the defendants, who were a majority of the election judges conducting such election, when the complainant presented himself to vote, insisted that he mark his ballot, and fold it in a particular way without assistance, as required by the special ballot law. It was asserted that this demand by the election offi-versy not arising under the laws and Concers was lawful if the special ballot law applied to the conduct of the election, but was! unlawful if the election in Rhea county was not subject to such special law, and was controlled by the general election law of the state. Averring that he was an illiterate person, and unable to mark or fold his ballot unassisted, and was therefore not able to comply with the provisions of the special baliot law referred to, it was alleged that the vote of plaintiff was rejected by the defendants, despite the insistence of the plaintiff that the election ought legally to have been conducted according to the requirements of the general law, and not by those After hearing upon the demurrer, the court filed an opinion in which it said that it clearly appeared from the declaration that the action did not really and substantially involve a Federal question, and that the court was without jurisdiction or power to entertain the suit. 108 Fed. 309. An entry was made sustaining the demurrer and dismissing the suit, and it was recited that the dismissal was solely because of the want of jurisdiction. A certificate of the judge, moreover, was filed, which is as follows: "In this cause I hereby certify that the order of dismissal herein made is based solely on the ground that no Federal question was involved, and that the declaration, in my opinion, disclosed the infraction of no right arising under or out of the Federal laws or Constitution; and that treating the demurrer as presenting this question of jurisdiction, and acting also independently of the demurrer, and on the court's own motion, the suit is dismissed only for the reasons above stated; that is, that the contro stitution of the United States, there is consequently no jurisdiction of the circuit court of the United States. "This certificate is made conformably to act of Congress of March 3, 1891, chapter 517, and the opinion filed herein April 30, 1901, is made a part of the record, and will be certified and sent up as a part of the proceedings, together with the certificate." Mr. Frederick Lee Mansfield submitted the cause for plaintiff in error: The right to vote for members of the Con gress of the United States has its founda185 U. S. tion in the Constitution of the United | jurisdiction, and this contention involved When, therefore, the declaration averred that plaintiff was deprived of the elective franchise, and that such denial was the result of the wilful, deliberate, wrongful, and illegal action of the defendants, it stated a case of which the circuit court had jurisdiction. Wiley v. Sinkler, 179 U. S. 58, 45 L. ed. 84, 21 Sup. Ct. Rep. 17. Mr. Jerome Templeton submitted the cause for defendants in error: The United States Constitution and laws do not confer upon the citizen the right to vote, but only the right not to be discriminated against as a voter. ground that the cause was one involving the Minor v. Happersett, 21 Wall. 162, 22 L. ed. 627; United States v. Reese, 92 U. S. 214, 23 L. ed. 563; McPherson v. Blacker, 146 U. S. 1, 36 L. ed. 869, 13 Sup. Ct. Rep. 3; Cooley, Principles of Const. Law, 291;tion of the United States;" that "the cirUnited States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; Ex parte Yarbrough, 110 U. S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Re Coy, 127 U. S. 749, 32 L. ed. 277, 8 Sup. Ct. Rep. 1263. cuit court of the United States has jurisdiction, concurrent with the courts of the state, of any action under the Constitution, laws, or treaties of the United States, in which the matter in dispute exceeds the sum As the Congress had not passed laws regor value of $2,000;" and that, the action beulating national elections, except so far as to prevent discriminations or intimidation, in the absence of an averment that plaintiff was discriminated against or intimidated no question arises under the Federal Constitution or laws. ing "brought against election officers to recover damages for their rejection of the plaintiff's vote for a member of the House of Representatives of the United States, the complaint, by alleging that the plaintiff was, at the time, under the Constitution and laws of the state of South Carolina and the Constitution and laws of the United States, a duly qualified elector of the state, shows that the action is brought under the Constitution and laws of the United States." concluding its examination of the question of jurisdiction, it was declared that "the circuit court, therefore, clearly had jurisdiction of this action." The conclusion thus expressed, by necessary implication, decided the power of this court to review, which would not have obtained, unless jurisdiction of the circuit court had been found to rest on the constitutional right. In The sole question is, Did the circuit court err in dismissing the action, on the ground that it was not one within the jurisdiction of the court? An affirmative answer to this question is rendered necessary by the decision in Wiley v. Sinkler, 179 U. Š. 58, 45 L. ed. S4, 21 Sup. Ct. Rep. 17. In that case the action was brought in a circuit court of the United States against state election officers to recover damages in the sum of $2,500 for an alleged unlawful rejection of It is manifest from the context of the plaintiff's vote at a Federal election. A de- opinion in the case just referred to that the murrer was filed to the complaint. One of conclusion that the cause was one arising the grounds of the demurrer was that the under the Constitution of the United States court had no jurisdiction of the action, be- was predicated on the conception that the cause it did not affirmatively appear on the action sought the vindication or protection face of the complaint that a Federal ques- of the right to vote for a member of Contion was involved. The demurrer, however, gress, a right, as declared in Ex parte Yarwas sustained, not because of the want of ju- brough, 110 U. S. 655, 664, 28 L. ed. 275, 278, risdiction, but solely upon the ground that 4 Sup. Ct. Rep. 152, 158, "fundamentally the complaint did not state facts sufficient based upon the Constitution [of the United to constitute a cause of action. The cause States], which created the office of member was brought directly to this court, under of Congress, and declared it should be electhat provision of the act of March 3, 1891, tive, and pointed to the means of ascertainwhich confers power to review the judgment ing who should be electors." That is to or decree of a circuit court, among others, say, the ruling was that the case was equalin any case involving the construction or ap-ly one arising under the Constitution or laws plication of the Constitution of the United of the United States, whether the illegal act States. In this court the contention was complained of arose from a charged violarenew that the circuit court was without 'tion of some specific provision of the Consti tution or laws of the United States, or from their essence Federal, and controversies conthe violation of a state law which affected cerning rights not conferred by the Constithe exercise of the right to vote for a mem-tution or laws of the United States, the ber of Congress, since the Constitution of contention respecting which may or may not [493] the United States had adopted, as the quali- involve a Federal question depending upon ications of electors for members of Con- what is the real issue to be decided or the gress, those prescribed by the state for elec-substantiality of the averments as to the extors of the most numerous branch of the leg-istence of the rights which it is claimed are islature of the state. Federal in character. The distinction finds It results from what has just been said apt illustration in the decisions of this that the court erred in dismissing the action court holding that suits brought by or for want of jurisdiction, since the right against corporations chartered by acts of which it was claimed had been unlawfully Congress are cases per se of Federal cognizinvaded was one in the very nature of things ance. Osborn v. Bank of United States, 9 arising under the Constitution and laws of Wheat. 817, 6 L. ed. 223; Texas & P. R. Co. the United States, and that this inhered in v. Cody, 166 U. S. 606, 41 L. ed. 1123, 17 the very substance of the claim. It is ob- Sup. Ct. Rep. 703. It may not be doubted vious from an inspection of the certificate that if an action be brought in a circuit that the court, in dismissing for want of ju- court of the United States by such a corporisdiction, was controlled by what it deemed ration, there would be jurisdiction to ento be the want of merit in the averments tertain it, although the averments set out which were made in the complaint as to the to establish the wrong complained of or the violation of the Federal right. But as the defense interposed were unsubstantial in very nature of the controversy was Federal, character. The distinction is also well illusand, therefore, jurisdiction existed, whilst trated by the case of Huntington v. Laidthe opinion of the court as to the want of ley, 176 U. S. 668, 44 L. ed. 630, 20 Sup. Ct. merit in the cause of action might have fur- Rep. 526, where, finding that jurisdiction nished ground for dismissing for that rea- obtained in a circuit court, this court held son. it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States. that it was error to dismiss the action for want of jurisdiction because it was deemed that the record established that the cause of action asserted was not well founded. It follows that the court below erred in dismissing the action for want of jurisdietion. Of course, in reaching this conclusion we must not be understood as expressing any opinion as to the sufficiency of the declaration. The judgment of the Circuit Court is reversed, and the action is remanded for further proceedings, in conformity with this opinion. True, it has been repeatedly held that, on error from a state court to this court, where the Federal question asserted to be contained in the record is manifestly lacking all color of merit, the writ of error should be dismissed. New Orleans Waterworks Co. v. Louisiana, 185 U.S. 336, ante, 936, 22 Sup. Ct. Rep. 691, and authorities cited. This doctrine, however, relates to questions arising on writs of error from state courts where, aside from the Federal status of the parties to the action or the inherent nature of the Federal right which is sought to be vindicated, jurisdiction is to be determined by ascertaining whether the record raises a bona fide Federal question. In that class of cases not only this court may, but it is COPPER QUEEN CONSOLIDATED MIN And it is so ordered. *UNITED STATES, Piff. in Err., v. ING COMPANY. (See S. C. Reporter's ed. 495-499.) Appeal-review of weight of evidence-bill of exceptions must contain all the evidence. its duty to, determine whether in truth and in fact a real Federal question arises on the record. And it is true, also, as observed in New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, ante, 936, 22 Sup. Ct. Rep. 691, that a similar principle is applied in analogous cases originally brought in a court of the United States. McCain v. Des Moines, 174 U. S. 168, 43 L. ed. 936, 19 Sup. Ct. Rep. 644: St. Joseph & G. I. R. Co. v. Steele, 167 U. S. 659, 42 L. ed. 315, 17 Sup. Ct. Rep. 925. But the doctrine referred to has no application to a case brought in a Federal [494 court where the *very subject-matter of the controversy is Federal, however much wanting in merit may be the averments which it is claimed establish the violation of the Federal right. The distinction between the Argued April 11, 14, 1902. Decided May cases referred to and the one at bar is that which must necessarily exist between controversies concerning rights which are cre A judgment entered on the verdict of a jury will not be reversed by the Supreme Court of the United States on writ of error, upon the ground that there is absolutely no evidence to sustain it, where the bill of exceptions does not show that the evidence contained therein is all the evidence that was given on the trial. [No. 218.] 19, 1902. ERROR to the Supreme Court of the ed States, and which consequently are in ment which affirmed a judgment of the Dis [495 trict Court entered upon the verdict of a Mr. Justice Peckham delivered the opinion of the court: Among other things the court charged the jury as follows: "It is also incumbent upon the defendant, in order to avail itself of the permission granted by said act of June 3d, 1878, and in order to justify its purchase and consumption of said timber, to show by a preponderance of the evidence that Doniel D. Ross, at the time of the cutting and removal of said timber from the lands of the plaintif, was a citizen of the United States and was a bona fide resident of the territory of Arizona. And should the evidence in this case fail to establish that, at the time of the Daniel D. Ross was a citizen of the United The government has brought this case here by writ of error for the purpose of reviewing a judgment of the supreme court of Arizona.cutting and removal of said timber, the said affirming a judgment entered upon the ver dict of a jury in favor of the defendant. The States, and a bona fide resident of the teraction was to recover $183,000, being the al-ritory of Arizona, you must find for the leged value of about 5,900,000 feet of timber, plaintiff, without regard to the mineral or said to have been wrongfully cut and taken nonmineral character of the land." by the defendant from the surveyed and unsurveyed public lands of the United States in a cañon in the Chiricahua mountains, 60ant, after which a motion for a new trial miles from the town of Wilcox on the South-An appeal from the judgment entered upon was made and denied by the trial judge. ern Pacific Railroad in the territory of Ariz- the verdict was then taken to the supreme court of the territory, where it was aflirmned. ona. The answer joined issue upon the allegations of the complaint, and also set up that the timber was cut by one Ross from public mineral lands of the plaintiff, and was so cut and removed from those lands under the authority of the act of Congress of June 3, 1878 (20 Stat. at L. 88, chap. 150) the material portion of which reads as follows: "That all citizens of the United States and other persons, bona fide residents of the [496 state of Colorado, or Nevada, or either of *The jury found a verdict for the defend-[497] It thus appears that the judge held, and cutting, must have been, not only a bona fide so charged the jury, that Ross, who did the resident of the territory, but also a citizen of the United States, and if he were not, then the plaintiff was entitled to a verdict. The government now says there was no evidence in the case that Ross was a citizen of the United States, nor any tending to show he was a bona fide resident of Arizona at the time the cutting was done, and that unless Ross were such citizen, and also a bona fide resident of the territory, his cutting of the timber was wrongful, and the government was entitled to a verdict. The verdict must be regarded as a finding that Ross was a cit izen of the United States and a bona fide the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby, authorized and permitted to fell and remove, for building, agriculture, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands resident of the territory when the cutting was done. If he were, there is no question being mineral, and not subject to entry unmade about his right to cut. The motion en der existing laws of the United States, except for mineral entry, in either of said the part of the government at the close of states, territories, or districts of which such the evidence, to direct a verdict for the gov citizens or persons may be at the time bona ernment upon all the evidence, and the exfide residents, subject to such rules and reg-ception to the refusal of the court so to do, ulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: Provided, The provisions of this act shall not extend to railroad corporations." The answer further set up that Ross had good right and lawful authority to cut and remove the timber, and that it was cut and removed from such lands in good faith, and at the time that he so cut and removed the timber Ross was a citizen of the United States of America and a bona fide resident of the territory of Arizona. would raise the question whether there was any evidence of the citizenship of Ross and of his residence in the territory when the cutting was done, upon which to base a verdiet, were it not that the bill of exceptions lacks an essential statement for that purpose. It does not appear from the bill that it contains all the evidence given upon the trial. It may be that it does, but we cannot, in the absence of any statement in the bill to that effect, presume it does for the purpose of reversing the judgment herein, upon the assumption that the proper conA trial was had in the district court be-struction of the act of Congress requires fore a judge and jury, and upon the close of the evidence counsel for the government made a motion that the court instruct the jury to find on the evidence a verdict for the government, which was refused and an exception taken such citizenship as well as residence. When this court is asked to reverse a judgment entered upon a verdict of a jury, upon a writ of error, upon the ground that there is absolutely no evidence to sustain it, and the court should have directed a verdict, the bill was such citizen, leaves a foundation for the belief that there was room upon the evidence for a difference of opinion in regard to that fact. However that may be, the record is in such a state that we cannot say that all the evidence given upon the trial is contained in the bill of exceptions, and, therefore, we cannot say that there was no evidence of the residence, and of the citizenship of Ross, upon which the verdict of the jury might be sustained. If there were evidence that Ross was a citizen and a bona fide res of exceptions must embody a statement, or there must be a stipulation of counsel declaring that the bill contains all the evidence [498] given upon the trial, so that the record shall aflirmatively show the fact. Russell v. Ely, 2 Black, 575, 580, 17 L. ed. 258, 260. In the cited case the court, after remarking that the bill of exceptions did not purport to give all that a certain witness had testified to, said that, according to a well-known rule, the court, under such a condition of the record, was bound to presume that there was that in the witness's testimony which justi-ident, it is admitted that the verdict could fed the instruction. It was then added by the court: "What purports to be the entire deposition of Baker is sent up by the clerk of the district court, and is printed in the record before us, and if properly before us might sustain the exception. But this deposition is not incorporated into the bill of exceptions, nor so referred to in it as to be made a part of the record of the case. is only a useless encumbrance of the transcript, and an expense to the litigating parties." The court thus refused to look at the deposition, which purported to be the entire deposition of the witness, because it was not made a part of the bill of exceptions. It In this case there is nothing whatever in the bill of exceptions to show that the evidence contained therein is all the evidence that was given on the trial, and we cannot presume, for the purpose of reversing the judgment, that there was no evidence given upon which the jury might rightfully have found the verdict which they did. not be disturbed by this court. There may have been evidence upon both propositions sufficient to sustain the verdict. The judgment must therefore be affirmed. SOUTHWESTERN COAL AND IMPROVE- v. HYRAM Y. MCBRIDE et al. (See S. C. Reporter's ed. 499-504.) Statutes-retrospective operation of act prohibiting collection of royalties under Indian coal leascs. The collection of royalties due and owing to the lessors of coal mines in the Choctaw Nation for coal mined under valid leases prior to the Curtis act of June 28, 1898, was not prohibited by the provisions of § 16 of that act, making it unlawful for any person after the passage of such act to demand or receive any such royalty, or for anyone to pay any such royalty to any individual. [No. 230.] So, in Texas & P. R. Co. v. Cox, 145 U. S. 593, 606, 36 L. ed. 829, 833, 12 Sup. Ct. Rep. 905, 909, which was an action to recover damages against the company for the death of plaintiff's husband, resulting from the negligence of the company, it was remarked, in regard to the evidence in the case, that "the Argued April 21, 1902. Decided May 19, bill of exceptions does not purport to contain all the evidence, and it would be improper to hold that the court should have directed a verdict for defendants for want of that which may have existed." It is true there is printed herein, together with the bill of exceptions, the statement that a motion for a new trial was made, and the remarks of the court are set forth upon his denial of the motion. The court said that, if the verdict were to be set aside, it would have to be based solely upon the failure of evidence to show that Ross was a citizen of the United States; but the court also remarked that at the time when he gave the [499]* instruction to the jury, that Ross must have been, not only a bona fide resident of the territory, but a citizen of the United States, when the cutting of the timber was done, he believed it to be a true expression of the law applicable to the case under the pleadings. It is plain that, in the view of the judge when the case was submitted to the jury, he thought there was evidence upon which a jury might find the fact of the citizenship of Ross. His subsequent statement made upon the refusal to grant a new trial, which inferentially, perhaps, admits that there was not sufficient evidence to show that Ross 1902. APPEAL from the United States Circuit cuit to review a judgment affirming a judg Court of Appeals for the Eighth Cirment of the Court of Appeals for the Indian Territory which affirmed a judgment of the United States Court for the Indian Territory, Central Judicial District, in favor of plaintiff in a suit to recover royalties due under an Indian coal lease. Affirmed. See same case below, 43 C. C. A. 683, 104 Fed. 1007. Statement by Mr. Justice White: This litigation was begun in the United is an appellant in this court, while McBride NOTE.-That statutes are generally prospec tive in operation-see note to Stewart v. Vandervort (W. Va.) 12 L. R. A. 796. |