Opinion of the Court.

versy was whether a railroad corporation authorized by acts of Congress to establish freight stations, and to lay as many tracks "as its president and board of directors might deem necessary," in the District of Columbia, had the right to occupy a public street for the purposes of a freight yard. It was argued that the validity of an authority, exercised under the United States, to so occupy the public streets was drawn in question. But this court held that only the construction of the acts of Congress, and the extent of the authority claimed under them, and not the validity, either of the statutes, or of the authority, was drawn in question; or, in other words, it was "a case which depends only on a judicial construction of an act of Congress, there being no denial of the power of Congress to pass the act, or of the right to enjoy whatever privileges are granted by it." Clough v. Curtis, 134 U. S. 361, 370.

In District of Columbia v. Gannon, 130 U. S. 227, it was held that the validity of the authority of the Commissioners of the District was not drawn in question by contesting the liability of the District in damages for the negligence of the Commissioners in failing to keep the streets in repair.

In United States v. Lynch, 137 U. S. 280, in which the court below had denied a writ of mandamus to compel accounting officers of the Treasury to allow a claim for mileage, it was contended that under the acts of Congress, and the construction given them by a previous decision of this court, the duty of the accounting officers "was merely ministerial, and that by the disallowance of the relator's claim for mileage these officers exercised a discretion which they did not possess; that this was an invalid exercise of an authority under the United States; and that hence the validity of the authority was drawn in question." To which this court, speaking by the Chief Justice, answered: "In order to justify this position, however, the validity of the authority must have been drawn in question directly and not incidentally. The validity of a statute is not drawn in question every time rights claimed under such statute are controverted; nor is the validity of an authority, every time an act done by such

Opinion of the Court.

authority is disputed. The validity of a statute or the validity of an authority is drawn in question when the existence, or constitutionality, or legality of such statute or authority is denied, and the denial forms the subject of direct inquiry." The court accordingly held that the authority of the accounting officers of the Treasury was not thus denied, nor the validity of that authority questioned; but that it was only contended that in the exercise of a valid authority those officers erred in respect to the allowance, in view of the decision of this court in another case; that if the judgment should be reversed upon the ground urged, it would not be for want of power in these officers to audit and pass upon the account, but because they had disallowed what they ought to have allowed, and erroneously construed what needed no construction; and that this would not in any degree involve the validity of their authority. 137 U. S. 285, 286.

In the present case, no objection to the validity of the act of Congress under which the Commissioner of Patents acted was made, either at the hearings in the Patent Office and in the courts of the District of Columbia, or in the briefs filed by counsel in this court. Nor was the existence or the lawfulness of the authority conferred by that act upon the Commissioner of Patents drawn in question. But from the beginning to the end of the proceedings the only controversy was as to the construction of the act of Congress, and consequently as to the nature and extent of the Commissioner's authority. Neither the question whether the Commissioner rightly decided upon the presumptive lawfulness of the right of the State of South Carolina to the trade-mark sought to be registered, nor the question whether the Commissioner's duty was of such a character that a writ of mandamus would lie to compel its performance, involved a question of the validity of the authority exercised by him under the United States.

Writ of error dismissed for want of jurisdiction.

Statement of the Case.

MASON v. PEWABIC MINING COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN.

This court has no jurisdiction over an appeal from a judgment of a Circuit Court denying the application of counsel for a solicitor's allowance out of a fund realized from a sale made under direction of that court in execution of a mandate of this court, the appeal being taken after July 1, 1891, and not being taken under the provisions of section 5 of the Judiciary Act of March 3, 1891, c. 517. When a mandate of this court has been misconstrued or disregarded by a Circuit Court, the proper remedy now is by mandamus; but in this case the Circuit Court was at liberty to consider the application for an allowance, and its action in that regard was open to review in the Circuit Court of Appeals.

ON March 31, 1884, some of the stockholders of the Pewabic Mining Company, on behalf of themselves and all others who might desire to join therein, filed their bill in the Circuit Court of the United States for the Western District of Michigan against that company, its directors, and a new corporation called the Pewabic Copper Company, formed for the purpose of acquiring the property of the Mining Company, seeking to have the property disposed of at public sale, and an accounting by the directors. The Circuit Court decreed a sale but denied the accounting. The case was brought to this court on cross-appeals and the decree affirmed except in respect of the accounting, as to which the decree was reversed and a reference directed. Mason v. Pewabic Mining Co., 133 U. S. 50. The case was decided in this court January 13, 1890, and the mandate having gone down, the Circuit Court rendered a decree May 6, 1890, ordering a reference, report, and sale by auction. February 3, 1891, the special master filed his report of sale, which was confirmed. On March 3 one Marcus filed an intervening petition to set aside the confirmation and open. the sale, which was denied April 27, 1891, and the petition

Statement of the Case.

dismissed, whereupon Marcus appealed to this court, which affirmed the order. Marcus v. Mason, 145 U. S. 349.

February 28, 1893, counsel filed a petition for an allowance out of the amount realized on the sale, to which an answer was filed and the petition denied, whereupon an appeal was prosecuted to this court. In the opinion of the Circuit Court, appearing in the record, it is said:

"The other matter which remains to be disposed of is the petition for an allowance out of the fund in favor of the solicitors for the complainants upon the footing of what are known as costs between solicitors and clients.

"A preliminary question arises in regard to the power of the court, proceeding as it is under the mandate of the Supreme Court, which contains the order of that court in regard to costs. This was to the effect that the complainants should recover their costs in the Circuit as well as in the Supreme Court. These, of course, must be understood to be the usual taxable costs.

"It would seem clear that this court has no authority to supplement that order by awarding a sum, to be determined by its discretion, as costs to be taxed as between party and party, but which are really an indemnity for the expense of carrying on the suit against a perverse and unreasonable defence, as was done in Perrin v. Lepper, 72 Michigan, 454, and Mackintosh v. Flint & Père Marquette Railroad, a case reported in 34 Fed. Rep. 582, (though not on this point, which latter appears from the record,) cited in support of this petition.

"This court is not now proceeding upon its original authority in regard to any matters which were or might have been dealt with by the Supreme Court on the appeal from the original decree. The subject of costs was included in the mandate, which we are now executing. Perkins v. Fourniquet, 14 How. 328; In re Washington & Georgetown Railroad, 140 U. S. 91; Gaines v. Rugg, 148 U. S. 228, 239.

"There is some analogy, though it is not complete, between the equity for such costs and costs between solicitor and client, which are paid out of a fund in court. I have some doubt whether this court retains the power to award the latter

Argument against the Motion.

species of costs; but I express no opinion upon this question, as it seems to me clear that this is not a case in which they could properly be allowed."

A motion, on behalf of the appellees, was made to dismiss the appeal for want of jurisdiction.

Mr. Thomas H. Talbot for the motion.

Mr. Russell C. Ostrander and Mr. Edward Cahill filed a brief by leave of court on the part of intervening stockholders.

Mr. Don M. Dickinson, (with whom was Mr. Alfred Russell on the brief,) opposing.

The question presented is, whether the act of March 3, 1891, creating the Court of Appeals, stands in the way of the present appeal. This act may be found in 138 U. S. 709.

This involves the effect of the proviso in § 6 of that act. Section 6 declares that in all cases other than those enumerated in section 5 (and this is not enumerated) the appeal shall be to the new court, "unless otherwise provided by law."

We submit this case falls within the last named proviso, precisely as the Marcus appeal (taken three months after the new act) did. Nobody suggested that that appeal should have been to the new court; yet every reason put forward why the present appeal should be to the new court, would apply to the appeal of Marcus. Marcus v. Mason, 145

U. S. 349.

The Court of Appeals act of March 3, 1891, went into immediate operation three months before the Marcus appeal. As to its immediate effect, see In re Claasen, 140 U. S. 200, 204 (near bottom); McLish v. Roff, 141. U. S. 661, 664. So that if counsel, now moving dismissal, is right, there was no jurisdiction here in the Marcus appeal.

The present case concerns the distribution of a fund created under the mandate of the Supreme Court, and (in the view of the court below) involves the construction of the language of the mandate of this court as to costs. Surely it is not for the Court of Appeals to give a construction and final operation to