Adams v. Yazoo & Mississippi Valley Railroad

Woods, C. L,

dissented as to so much of the decision as overruled Mississippi Mills v. Cook, 56 Miss., 40, and Railroad Co. v. Lambert, 70 Ib., 779.

IJpon the filing of the opinion outlined by the summary, on the 22d day of November, the defendants moved to strike the opinion from the files on the ground that it was filed too late; that it was not such an opinion as the statute contemplated to be filed, the cause having been remanded and having been reheard in the court below, under the “summary of hold*298ings,” and a second appeal taken before the filing thereof; and, on the further ground that said opinion presented new grounds of decision, which were not implicated by the said “summary of holdings,” on which the second judgment of the court had been based.

The brief of Messrs. Mayes £ Harris, in support of the motion cannot be found by the reporter after diligent search. Oritz £ Beckett, contra. We do not think this motion is germane to this case, or that this court has any jurisdiction to entertain such a motion. This case, No. 8629, as a case, ivas decided on June 20, 1898. It was then reversed and remanded, and this court adjourned for the term on July 1, 1898, and thenceforward lost’all jurisdiction of this case. It was the judgment of this court reversing and remanding the cause which reinvested the lower court with jurisdiction to proceed, and the mandate was at most simply an official notification. Foster v. Jordan, 54 Miss., 510. We think the court or the judges have a right to correct their opinions at any time. It is a mere matter of taste and accuracy; and even if new grounds are added, they cannot prejudice either party in that case, for the simple reaeon that the judgment remains the same, and that is all that the litigants are concerned with or have a right to demand or require. If any objection can be made, it is not in that case, but in some other case in which the new decision or finding is attempted to be used, when it might be claimed that it could not be used as res adjudicate!,, because the party has not been heard on it, and has not had his day in court. There is a second appeal pending in this litigation, but not in this case, and when that appeal comes on to be heard, then it will be in order to claim that any new ground in the opinion in this case, inserted after the trial in the lower court, shall not be used on that appeal, except as an original proposition, and on its merits, as applicable to the second appeal, and not by virtue of the fact that it appears in the corrected opinion. If it is a new ground, the defendants may have a right to be heard on it, as if it had not been passed on, but we fail to see the propriety of starting up a fresh litigation with the court about the language in which its opinion is expressed, when its decision, one way or the other, could not have the least effect on the case decided.

*298The motion was overruled, the court delivering the opinion which follows the briefs of counsel.-

We think an amic.us curiae, or any outsider, would have as much legal interest in the result of such a motion, and as much right to make it, as the defendants. J. A. P. Campbell, contra. This motion is without precedent or merit, and is a direct attach, on the right of the judges and on the power and dignity of the court. No law prescribes when an opinion shall be delivered. The only provision is that, in certain cases, the opinion shall be in writing, stating the reasons upon which the decision ismiade. All else is left to the court. Another aiid distinct provision is that á copy of the opinion, in cases remanded, shall be certified to the court below. The sole purpose of this is to inform the lower court of the ground on which its judgment, or decree was set aside, and to make the cost of the opinion a part of the taxable costs of the case, but for which information of the reason for reversal would have to be ascertained by other means. These are mere matters of practice, in no. way affecting jurisdiction or the validity of proceedings or judgments. Were the supreme court to reverse and remand without giving an opinion in writing, or with a mere statement that the judgment or decree ivas found to be erroneous, the validity of the reversal and consequent proceedings would be unquestionable. Were the court below to proceed with a case remanded, in which the most elaborate opinion was written, without having a copy of the opinion, no objection could be sustained for that'. The matter of opinions must, from necessity, be left to the discretion and control of the court as mere matter of practice, the statutes directing certain things, but not making validity to depend on their being done. Usually the opinion precedes and directs the decision, but the validity of the decision does not depend on the opinion. The opinion might be ever so erroneous and indefensible, but that would not affect the validity of the decision. They are quite independent of each other as to this. It is not uncommon to enter the decision, and deliver the opinion afterwards at leisure, and no law prohibits this or is contravened by it. It is within the control of the court, and hitherto unquestioned. The motion does not accurately state the case. There was an opinion in writing stating the reasons for the decision, before it was made, and this opinión stated “there are other views leading to the same conclusion which we may embrace in the opinion yet to be filed.” Thus the law requiring an opinion was complied with, and, with the several reasons given in it, there was notice of more to follow .in a more elaborate opinion thereafter given. The complaint is that the after opinion “announces decisions on points of law alleged to be controlling in this case additional to and different from any decision announced in the abstract (summary) of June 26, 1898, and certified to the court below with the mandate as the opinion of this court.” If this be true, it affords no ground for complaint. A comparison ox the opinion (summary) which preceded the decision and the more elaborate opinion subsequently delivered, will show that the latter is but an amplification of the views of the judges in sustaining their conclusions formulated in the former, only an extension of the argument, with some additional views reinforcing it. The summary held that “because of the inconsistent compromise verdict, tbe judgment is reversed and cause remanded on tbe appeal and cross appeal.” 2. Disposed of tbe claim of res adjudicaba,. 3. Held that there was consolidation by tbe companies, and a loss of exemption from taxes, by virtue of sec. 180 of tbe constitution of 1890. 4. That sec. 21 of tbe Mobile & Northwestern Railroad Company charter, relied on, was in violation of tbe constitution of 1809, and therefore void. 5. That Mississippi Mills, v. Ooolc and tbe Lambert case were unsound and overruled. There is little else in the'latter opinion, which reaffirms tbe above propositions, and whatever added reasons may be in it are surely covered by tbe announcement of the “other views” indicated by the summary as probably forthcoming. Apart from tbe undoubted right of the court to deliver its views when and in what form it pleases, what barm has been done, and what right has a litigant to complain? What can be gained were tbe motion sustained? The object in mating it is transparent, but it is not perceived how the mover would be advantaged by its being sustained. The summary or first opinion is quite sufficient. It shows sufficient reasons for tbe decision, and that consolidation caused loss of exemption by sec. 180 of the constitution of 1890. This is strictly a question for this court to decide finally, and with which tbe supreme court of the United States can have nothing to do. This is a distinct and independent ground of the decision, supporting it and placing it beyond federal interference; and if all else was stricken from tbe summary, and if the latter opinion was withdrawn, or this motion sustained, the decision would be unassailable. Can it be that the mover hopes to keep the elaborated opinion from being considered by the supreme court of the United States.? The effort made by this motion will insure its consideration by that court, if the case shall ever get before it. It is apparent that the object is to inject into the case a federal question, as is shown by tbe second ground of tbe motion, which is that the fourteenth amendment of the constitution of the United States was violated by what occurred. How, is not discoverable. Wherein the trial of the remanded cause by the circuit court, and rendition of judgment against the appellants without the benefit of the full opinion recently given, was “without due process of law,” is a profound mystery. The summary cut the defense up by the roots, and that there were other reasons for the decision was immaterial. One is enough, and addition made no difference. If there had been no opinion by this court, and the circuit court, groping in the dark, had ruled m accordance with the views of this court, all would have been well, and the judgment would have been unaffected by that. The law requiring opinions in writing is simply advisory. 1c is not obligatory. Houston v. Williams, 13 Oal., 27, announces the true view, and fully vindicates the action of this court in this case. I cannot add anything to its vigorous presentation, and rest the resistance of the motion on it. A new definition of “due process of law” will have to be framed to warrant the granting of this motion. Whitfield, J.,

delivered tbe opinion of the court.

Sec.. 4352 and § 4381 of the code of 1892 were fully complied with by the summary of holdings handed down in June last, certified to and used in the circuit court .on the trial of the case after it was remanded. Every reason for decision contained in thar summary is also set out in the opinion filed recently, insisted on, and enforced. 24 South., 200. The court has receded from no position in that summary announced. It has added one new reason, and one only, for the decision: That the exemption was repealed by legislation, to wit, the act of 1886, and the provisions of the code of 1892. With this single exception,, the reasons given for the decision in the summary are identical with the reasons given in the opinion now *303on file; and it is too plain for argument that, bad tbe new reason for decision now set out in tbe opinion been also- set out in tbe summary, the circuit court would merely have bad one more reason for sustaining tbe action it took. Tbe railroad companies were not, and could not possibly have been, prejudiced by the fact that the summary did not contain this additional reason. Nor is it now, nor can it be, prejudiced by the fact that tbe opinion does not contain this one additional reason for our decision.

Other views of counsel are adverted to in tbe opinion, but it is distinctly declared that as to them we decide nothing — not adopting them in anywise as reasons for decision. Moreover, we distinctly stated in tbe summary: “There are other views, leading to tbe same conclusion, which we may embrace in tbe opinion yet to be filed. What we have said is a mere summary of tbe holdings set forth.” And at the last term of this court a motion was made to have a fuller opinion banded down then, before tbe trial in tbe circuit court, based on § 4352, code 1892, which we overruled on tbe ground that the summary was a sufficient compliance with that section, and sboxdd stand as tbe opinion of tbe court for the time being. Tbe argument made then, and repeated now, as to. this, was that tbe law requires the opinion to accompany the mandate,.and that tbe court below could not proceed without both. This point was disposed of adversely to this contention in Foster v. Jordon, 54 Miss., 510, tbe court saying: “'This is an erroneous conception of tbe province of tbe mandate. It is tbe judgment of this court reversing and remanding a case which gives the lower court authority to enter upon a nqw trial.” . And tbe opinion of this court is not more necessary to tbe jurisdiction of tbe circuit court than tbe mandate. Both are mere matters of practice. Beyond this, tbe scope of tbe motion is to.assert the proposition that this court has not the power, after tbe trial of a' remanded cause, in any way to revise, add to, or take from the mere reasons for its decision, even though tbe reason added or taken *304away in nowise affected the party losing in the lower court prejudicially. That, precisely and exactly, is the proposition asserted. It is hardly necessary to say that this wholly novel and extraordinary proposition is untenable. This court, of equal and co-ordinate dignity with the legislative and executive departments in matters judicial, “uttering the voice and registering the will of the state,” is reduced to no such pitiable plight. The very question here presented has been settled by authority over and over again.

In Houston v. Williams, 13 Cal., 24, Mr. Justice Field, after-wards on the supreme bench of the United States, says, for a unanimous court, after citing the statute there relied on, which provided that “all decisions given upon an appeal . shall be given in writing, with the reasons therefor, and filed with the clerk of the court:” “It will not be impertinent to say a few words as to the control of the court over its opinions and records. There are some misapprehensions on the subject, arising chiefly from a confusion of terms, and from a misconception of tire relations of the different departments of government to each other, and the entire independence in its line of duties of the judiciary. The terms ‘opinions’ and ‘decisions’ are often confounded, yet there is a wide difference between them, and in ignorance of this, or by overlooking it, what has been a mere revision of an opinion has sometimes been regarded as a mutilation of a record. A decision of a court is its judgment. The opinion is the reason given for that judgment. The former is entered on record immediately upon its rendition, and can only be changed through a regular application to the court upon a petition for rehearing or a modification. The latter is the property of the judges, subject to their revision, correction and modification in any particular deemed advisable, until, with the approbation of the writer, it is transcribed in the records. . All these errors, whether in language, form or substance, should be corrected before a publication is permitted as an authoritative exposition of the law, and as such binding upon *305tbe court. In no civilized state, except California, bas tbe existence of this power ever been doubted. Every judge, from tbe chief justice of tbe supreme court of tbe United States down, claims and exercises without question the right- of revision, including thereby modification and partial suppression of bis opinions. . . . When the opinions have been revised, and finally approved and recorded, then they cease to be the subject of change.” There has been no suppression here. The majority of the court have receded from no position announced in the summary, but positively affirm every one of them in the opinion. And that this is so, we here make part of this opinion that summary, in its entirety, so that a comparison of it with the opinion now on file may show the facts as they are. That summary is as follows:

“summary OK TUB GOHRt’s HOLDINGS.
“Wiiitpield, J. 1. Because of the inconsistent compromise verdict, the judgment is reversed, and cause remanded, on the appeal and the cross appeal.
“2. The Lambert case, 70 Miss., 779, 13 South., 33, is res adjudicata as to the taxes for the year 1892 on all the property that originally belonged to the Natchez, Jackson & Columbus Railroad Company, which ivas in Adams county; and, being res adjudicata, it is, as to that, beyond our power to overrule it.
“3. The Lambert case is not res adjudicata as to any of the other taxes here involved, on the property that once belonged to the Natchez, Jackson & Columbus Railroad Company, or on any of the other property here involved.
“4. The Lambert case did decide that sec. 180 of the constitution of 1890 did not cut- off the exemption from taxation asserted in this case, on the ground that this is a case of mere merger, and not of consolidation; that the resultant corporation was not a new corporation, and applied the principles of Tennessee v. Whitworth, 117 U. S., 139 (6 Sup. Ct., 649), which is, beyond all controversy, a clear case of simple merger, and *306not of consolidation. Taking 'merger/ proper, to mean the absorption of one corporation by another, the autonomy of the absorbing corporation being preserved, without the formation of a new company, and 'consolidation/ proper, to mean such union of two corporations as results in a third new corporation, under whatever name, we hold that the clear legislative purpose was (using the words in the sense indicated) consolidation, and not merger, yet consolidation in such sense as to result in the formation of a new corporation, and, besides, that what was actually done here was necessarily the creation of a new corporation, and not mere merger; that, hence, the principles of the Whitworth case do not apply, but the principles of Keokuk, etc., Railroad Co. v. Missouri, 162 U. S., 301 (14 Sup. Ct., 592), do apply; that, consequently, the constitution of 1890, sec. 180, cut off the exemption; that the Lambert case cannot be upheld, and should be, and is hereby, overruled. If it be conceded that the purpose aimed at by the articles of agreement of the railroad company was mere merger, it is not to be permitted that the company could overthrow the purpose of the legislature to authorize consolidation, and not merger, nor to name that 'merger which the actual things done show was consolidation. Consolidation is a privilege, to be exercised or not, not a contract. Section 1S1 of the constitution, and sec. 279 of the schedule thereto, merely mean that corporations existing at the adoption of the constitution, having then exemptions or other 'rights/ should have them ‘continue so long as such corporations retained the precise corporate existence they then had. The new corporation here takes its life, as from a new grant of corporate life, from the 'date of the consolidation.
"But we hold, further, that the twenty-first section of .the Mobile & Northwestern Bailroad Company’s charter was an effort to secure, as is expressly recited in its face, an irrepealable grant of exemption, and violative of the constitution of 1869, art. 12, sec. 13, and art. 12, sec. 20, even as construed in Mississippi Mills v. Cook, 56 Miss., 40. The exemption *307claimed in Mississippi Mills v. Cook bad no irrepealable feature.
“But, again, we bold that sncb section violated said clauses of said constitution, even bad it not been irrepealable. Mississippi Mills v. Cook turned upon some supposed magical distinction, in tbe particular connection, between the words ‘subject’ and ‘subjected,’ and sacrificed a great constitutional principle to a piece of mere verbal jugglery. Precisely tbe same clause, using precisely tbe same word, ‘subject,’ occurs in tbe constitution of Florida and Arkansas; and tbe supreme courts of both states held, in precisely identical contention, that tbe clause forbade exemption from taxation of ‘corporations for pecuniary profit,’ and both of these decisions were on this identical proposition affirmed by tbe United States supreme court. Railway Co. v. Berry, 41 Ark., 509; Id., 113 U. S., 475 (5 Sup. Ct., 529); Palmes v. Louisville, etc., Railroad Co., 19 Fla., 231; Id., 109 U. S., 253, 254 (3 Sup. Ct., 193). And this construction is reaffirmed in Keokuk, etc., Railroad Co. v. Missouri, 152 U. S., 310, 311 (14 Sup. Ct., 592). Tbe word;‘subject’ should have been given its plain, popular signification, occurring in tbe connection it did, in a great popular instrument, tbe constitution, the very signification attached to' it by. tbe supreme court of tbe United States. We prefer to align ourselves now with that court in this matter, and overrule Mississippi Mills v. Cook on that point. It passes all understanding bow tbe court could gravely hold, in Mississippi Mills v. Cook, that a solemn declaration in the constitution of a state, its organic law, formulating fundamentally great lines of public policy, that ‘the property of all corporations for pecuniary profit’ should be subject to taxation tbe same as that of individuals, added no new feature, but merely stated what was tbe law before, and without tbe declaration, to wit, that tbe ‘property of corporations for pecuniary profit’ was liable to taxation. All tbe world knew that before!
“Judge Campbell, in bis dissenting opinion in Beck v. Allen, *30858 Miss., at page 177, most wisely said: ‘Subtlety and refinement and astuteness are not admissible to explain away an expression of tlie sovereign will. The framers of the constitution, and tlie people who adopted it, must be understood to have intended the words employed in that sense most likely to arise from them on first reading them.’ Doubtless the rule of stare decisis is a wise rule, and one not lightly to be infringed. But instances justifying its disregard find manifold illustration in the reports. And, surely, stronger reasons for not applying it can never arise than where, as here, to disregard it restores to the sovereign the exercise of one of the highest attributes of sovereignty, the taxing power, and merely requires that corporations for pecuniary profit, constantly demanding and securing the protection of the government, shall also bear their just share of the burdens of taxation. We feel, therefore, confident of the propriety of overruling, as we now expressly do, the Lambert case and the case of Mississippi Mills v. Cook, supra. There are other views, leading to the same conclusion, which we may embrace in the opinion yet to be filed. What we have said is a mere summary of the holdings set forth.
‘‘Reversed and remanded

But the California case is not the only authority. In' the appendix to 131 IJ. S., at page 18, it is said: “Judges frequently correct their opinions In the hands of a reporter after a printed copy has been filed with the clerk. . . .” If one curious in such things would know how far back this Corrective practice has existed, let him look as far back as the seventh volume of Cranch (1st ed.), where he will find corrections made by Mr. Justice Story in the opinion of the court delivered by him in Barnitz's Lessee v. Casey, 7 Cranch, at page 456. In later editions the changes are incorporated in the text. We have examined this first edition, and it is there stated on the page following the table of cases cited in that volume, as follows: “Since this volume was printed, Mr. Justice Story has *309requested that the following corrections and additions should be made in the opinion delivered by him.” So that illustrious judge actually corrected and added to his opinion in 7 Oranch after the official volume of reports had been published. So far as due “process of law is concerned,” it is too obvious for discussion that it cannot be involved in mere matters of practice of the courts. We conclude with these words of Judge Field in the case cited: “The power over our opinions and the records of this court we shall exercise at all times, while we have the honor to sit on the bench, against all encroachments from any source, but in a manner, we trust, befitting the highest tribunal in the state.” The motion is denied.

STATEMENT OF SECOND APPEAL.'

The mandate of the supreme court, pursuant to said summary, was promptly issued to the circuit court of ITinds county, which was then in session. Thereupon two other suits for taxes assessed against the same property for the years 1896 and 1897, respectively, which suits had been brought against the same defendants in the meanwhile, were consolidated with the principal case. Defendants then objected to the taking of any steps in the cause at the June term, 1S9S, first, for the reason that the supreme court had not yet delivered its opinion in the cause, as required by § 4352, code 1892; nor, secondly, had said opinion been certified with the mandate to the court below, as required by §4-381, code 1S92, the “summary of holdings” in these respects not being a fulfillment of the law. These objections were overruled. Defendants then applied for a removal of the cause to the United States court, on the ground that the recent holdings of the supreme court overruling the Mississippi Mills case and the T^ambert case, had for the first time introduced into the cause federal questions, and, therefore, for the first time the cause has become removable. The application was denied. Defendants then applied for a continuance of the cause for reasons assigned. The continuance was *310refused. Defendants then filed certain pleas to meet the new aspects of the case imported into it, as they claimed, by the recent decision of the supreme court, which pleas were, on motion of the plaintiff, stricken out. Defendants then withdrew' the pleas previously filed by them, and refused to plead further, and judgment nil dicit was entered for the taxes from 1892 to 1897, inclusive, from which judgment the defendants took an appeal to the supreme court.

The reporter has been unable, after diligent search, to find the briefs of Messrs. Mayes & Harris, and Cooper & Waddell, for the appellant, and J. A. P. Campbell, for the appellee, on second appeal. Grits & Beckett, for appellee. Since the defendants withdrew all their pleas on file, and permitted judgment nil dicit to go against them, it is evident that the matters involved in this appeal are reduced to mere matters of practice. These questions are four, viz.: (1) The jurisdiction. of the circuit court commencing its term on June 20, 1898, to try a case reversed and remanded to it on that day, the mandate being filed on July 4, 1898, and the case being reached and called for trial the same day; (2) the refusal to transfer to the federal court; (3) the refusal to continue; (4) striking out the additional pleas. 1. Some of the states have express statutes making causes triable at the next term after reversal, and some have statutes requiring-a new notice of trial to be given, but ours has neither, and in the absence of such, the lower court has authority to proceed immediately. St. L. & M. S. liy. Co. v. Sweet, 60 Ark., 550; In re Courts, 100 Cal., 402, 403; Baker v. Baker, 87 Ky., 461; Atkinson v. Dixon, 96 NTo., 581, 582; Schuman v. IleTourg, 62 Ill. A.pp., 218; Ogden v. Bosse (Tex. Civ. App.), 23 S. W., 730; 13 Ency. Pldg. and Pr., 855, note. 1; 6 Am. & Eng. Ene. L., 835, note 2. Our statute provides that “an action shall, for all purposes, be considered to have been commenced and to be pending from the time of filing the declaration,” etc. Code of 1892, § 670. The mandate is the official notification to the lower court of authority to proceed. It was filed before the case was called, but even the mandate is not necessary to confer jurisdiction. It is the judgment of the supreme court reversing the case that confers the jurisdiction on the lower court. Foster v. Jordan, 54 Miss., 509. The only argument the defendants could use was that § 635 of the code required the clerk, before each term of the court, to set the trial cases, but this section itself refers to a decision of Tift v. Virden, 11 Smed. & M., 153, 163, which says it does not apply to exceptional cases, or those triable at the first term, and this case is not only triable at the return term under § 4194, but is entitled to precedence, and hence is not affected by the setting of the docket. 2. The refusal to transfer to the federal court was clearly proper, for two reasons: First, the plaintiff is not claiming any right under the federal constitution, and it cannot be raised by the defendants in any proceedings for removal. Tennessee v. Union & Planter's Bank, 152 IT. S., 454; Chappell v. Waterworth, 155 II. S., 102; Postal Tel. Go., v. Alabama, 155 TJ. S., 487; Fast Lake v. Broiun, 155 TJ. S-, 488; Mex. Nat. B. B. Go. v. Davidson, 157 IJ. S., 208; Oregon v. Skottowe, 162 IT. S., 490; Walker v. Collins, 167 IJ. S., 57; Galveston v. Texas, 170 IJ. S., 226. Second, the application was made too late, because made after the appearance term. IT. S. Stat. at Large, 1887-1889, vol. 25, pp. 433-435; Fox v. So. By. Go., 80 Fed. R., 945; 1 Desty Fed. Pro., sec. 96, and note; Howard v. So. By. Go. (N. O.), 29 S. E., 778, 781; 138 IJ. S., 303; 142 U. S., 439; 151 TJ.#S., 673. It is the same old story related by Mr. Justice Brewer: “They have gone through the state trial and appellate courts, and their rights have been finally declared by the supreme court of the state, and though as yet no formal decree has been entered in the trial court, it is none the less true that they have experimented with the state courts and been beaten, and now seek a different forum.” Rosenthal v. Coates, 148 IT. S., 147, 148. 3. The continuance was properly refused. The principles of the case had been finally settled by the supreme court, and that decision was conclusive both in the lower court and on any subsequent appeal to this-court. George’s Digest, pp. 387, 388, sec. 183. The continuance was aslced on account of the absence of leading counsel. The record shows that he was not the leading counsel, but that Mr. Mayes, who was present, was, and no one will contend that this ease could have been more faithfully attended to by anyone else. But the absence of “favorite counsel” is not ground for continuance. “It must further appear that there were probable merits which sustained prejudice in consequence of the absence of the particular counsel relied on.” A case very much like this is Garnett, v. Kirkman, 41 Miss., 97-99. See also Tierney v. Duffy, 59 Miss., 364; Means v. Barde of Randall, 146 IT. S., 620, 629; McGuire v. Commonwealth, 3 Wall., 382. 4. There, were four substantive grounds of the motion to strike out the additional pleas, viz.: (1) Because improperly filed; (2) the same defenses could be set up under the pleas already on file; (3) they were no defense; (4) they were vague, uncertain, etc. (1) They were filed without leave of the court. In such a case pleas will be stricken out on motion. Pool v. Hill, 44 Miss., 306; Wright v. Alexander, 11 Smed. & M., 411; O’Cortr ley v. Natchez, 1 Smed. & M., 31; Peters v. Finney12 Smed. & M., 449; Hartford, Ins. Go. v, Gi-een, 52 Miss., 338, 339; MeAdory v. Turner, 56 Miss., 666; Hunt v. Walker, 40 Miss., 590; Higdon v. Vaughn, 58 Miss., 577; Lewis v. Black, 5 0., 425; Shropshire v. Prolate Judge, 4 II., 142. A refusal to strike out is equivalent to leave to file, but tlie striking out cannot be assigned for error. The remedy in such case is to ask for leave to file after they are stricken out, which was not done. Pfeifer v. Chamberlain, 52 Miss., 91. (2) The same defenses could be set up under the pleas already on file. They had in fact been set up in the former pleas and in the suggestion of errors, and had all been overruled by the supreme court, and this was simply an attempt to plead before the circuit court that the decision of the supreme court, which was made in the same case, and for the direction of the circuit court, was revolutionary, and should not be regarded, and it is eminently proper to strike out such pleas. Agne v. Seitsinger, 104 Towa, 485, 486. (3) Everything attempted to be set up in these pleas had been fully heard and settled by the supreme court on the regular hearing, and in considering the suggestion of errors, and was res adjudicaba, and not open to further question in this particular case. This is the settled law both in this court and in the supreme court of the United States. McDonald v. Green, 13 Smed. & M., 138, 445; Bridgeforbh v. Gray, 10 G-., 136; Stewart v. Stebbms, 1 G., 66; Smith v. Elder, 14 Smed. & M., 100; Henderson v. Winchester, 2 G., 290; Chaffin v. Taylor, 116 U. S., 567; Ciarle v. Keith, 106 IT. S., 464; The Lady Pike, 96 Tí. S., 461; Supervisors v. Kennicut, 94 IT. S., 498; Norman v. Bradley, 12 Wall., 121 ; Roberts v. Cooper, 20 How., 467; Seizer v. Many, 16 How., 98; Sibald v. United States, 12 Pet., 448; Great Western, etc., v. Burnham,\ 162 H. S., 343, 344; see also 117 Tnd., 27, 28. It is perfectly apparent that the defendants are no longer willing to abide by what this court may say, but that this is an attempt now to fix up a record for the supreme court of the Hnited States. A federal question cannot be raised in the arguments or briefs of counsel. Lay ward v. Denny, 158 IJ. S., 183, 184; Zadigv. Baldwin> 166 IT. S., 485. None was attempted to be raised in this case till the suggestion of errors, and tbe supreme court of tbe United States bave always be]d that to be too late. Pim v. St. Louis, 165 U. S., 273; Layward v. Lenny, 158 IT, S., 180; Bushnell v. Croolee, 148 U. S., 682; Loeber v. Schroeder, 149 U. S., 580; Schuyler v. Bolling, 150 U. S., 85; Powell v. Brunswick Co.,) 150 U. S., 433. Hence, we insist that there is no rule of law, or of the United States, which requires this court at this late day to take cognizance of any federal question attempted thus to be raised out of the regular order of pleading and practice. See also-Mexican, etc., B. B. Co. v. Pinckney, 149 U. S., 194; Stevens v. Nichols, 157 U. S., 370, 371. But if it is admissible to consider the pleas on their merits, they present no federal question. The contract clause of the federal constitution only applies to subsequent laws, and has no application to decisions of the state courts construing their antecedent constitutions, or overruling their former decisions. Central Land Co. v. Laidley, 159 U. S., 109-112; Hansford v. Davis, 163 U. S., 278, 279; Winona v. Minnesota, 159 U. S., 528, 529; Wood v. Brady, 150 U. S., 20-23. ■ There was another ground of decision, that the exemption, if it ever existed, was lost by the consolidation, and a plea simply setting up that the decision that the exemption was unconstitutional was a violation of the federal constitntion, even if good, was no answer to the other ground of decision that it had been lost by the consolidation. Where there are two or more grounds of decisions, they must all violate the federal constitution, or else there is no violation within the meaning of the law. Seneca Nation v. Christy, 162 U. S., 289, 290; Pierce v. Somerset B.y. Co., 171 U. S., 641. (4) The pleas were vague, indefinite' and uncertain, and § 704 of the code of 1892 expressly authorizes such pleas to be stricken out on motion. The pleas are long and voluminous, and no ordinary jury could tell what-issue or issues they were called on to decide, whether to overrule the supreme court, or what had been the policy of this state, or whether former ■legislatures had refused to repeal exemptions, or when the first railroad was built, or what the court had decided in the Mississippi Mills and other cases, or when the state was first settled, or a great many other things too numerous to mention. The policy of the law in the circuit courts, where jury trials abound, is to reduce each defense to a single issue in plain, ordinary, concise language, which a jury can easily comprehend and decide intelligently. As to the first and second assignments of error attempting now to raise questions which could have been raised on the first appeal, it is only necessary to refer to McKinney y. State, 117 Ind., 27, 28. Argued orally by Tim 2?. Cooper and Kdward Mayes, for the appellant, and by J. A. P. Gamphell, B. 0. Beckett, and F. A. Gritz, for the appellee. ■

Whitfield, J., delivered the opinion of the court.

The petition for removal of the cause to the federal court was properly denied. The decisions of the United States supreme court, cited in briefs of counsel for appellee, put this at rest. Kansas City, etc., Railroad Co. v. Doughty, 138 U. S., 303; Tennessee v. Bank, 152 U. S., 454; Galveston, etc., Railroad Co. v. Texas, 170 U. S., 226. The application for continuance was properly overruled. The court’s action in striking out the special pleas stricken out was correct, for the obvious reason that they presented no defense to the action, in whole or in part. The former opinion of this court in this case settled definitely and conclusively all the issues involved, and the special pleas are, in effect, nothing else than an effort to have the circuit court disregard that opinion. The futility of that sort of pleading' needs no comment.

These and all the other matters of practice and procedure assigned for error were correctly settled by the court. The *316former opinion of tbis court in this cause, and its opinion on the motion to strike that opinion from the files, disposed effectively of such of these matters as are not here specifically adverted to.

So far as concerns the argument that the appellants relied on the case of Mississippi Mills v. Cook, 56 Miss., and that if the overruling of that case is correct, nevertheless the appellants should be protected from taxation accruing before the overruling of that case, it is enough to say that question is not material here, since all the taxes here sued for accrued after the consolidation of October 24-, 1892, and the appellants were expressly held to have lost their exemption, if any they had, by their own voluntary act of consolidation. That was the first and main ground on which our former opinion was distinctly rested. It must be too clear for serious disputation, in this view, that all discussion of the case of Mississippi Mills v. Cook is wholly unavailing as to these taxes. Moreover, the twenty-first section of the Mobile & Northwestern charter was not passed on in Mississippi Mills v. Cook, and we held in our former opinion that its constitutionality was never squarely presented, as the point for decision, until the former judgment in this case. Whatever merit there may be in this line of argument in a proper case, it is clear that here it has, by reason of the fact of the consolidation when and as it occurred, no room for play.

The last proposition which we notice is the one that the Lambert case in 10 Miss, was erroneous, and ought not to be followed in its announcement that the code of 1880 repealed the exemption here"claimed. It was said, inter alia, that the Mobile & Ohio R. R. Oo. had an identical exemption with the twenty-first section of the Mobile & Northwestern charter, and that § 598 of the code of 1880, by providing for Tia sworn statement of the capital expended in the construction of its road,” recognized the exemption as meant by this § 598 to furnish the state with the means of knowing when the M. & O. R. R. Oo. *317should become liable to taxation; and that since it recognized the M. & O. R. R. Co.’s exemption, of course it must also have recognized the alleged identical exemption of appellants. Such was the argument gravely pressed upon the court. It is singular that learned counsel overlooked the easy and overwhelming answer springing from the fact that the twenty-first section of the Mobile & Northwestern charter was granted by an act of the legislature passed in 1870, after the constitution of 1869 was adopted, while the charter of the Mobile & Ohio R. R. Co. was granted in 1848, twenty-one years before that constitution was adopted, at a time when the legislature had full power to grant, so far as any constitutional restriction was concerned, an irrepealable exemption.

But it is said that § S of the code of 1880 provides that “no private act not revived and brought into this code shall be affected by its'provisionsand that general laws as to taxation ought not to be held to repeal private grants of exemption, unless expressly so stated. The principle is correct enough. But we think the alleged exemption of the Natchez, Jackson & Columbus R. R. Co. expressly repealed. There were two bills of injunction in the Lambert case — rather, there were two cases. The court distinctly held that this exemption from taxation was an exemption both from ad valorem taxes and privilege taxes. Now, the scheme of railroad taxation propounded by the code of 1880 was primarily to subject “each railroad owning and operating a railroad in this state” to ad valorem taxes. That scheme is set forth in §§ 597-606 of code of 1880, inclusive. But secondarily, and as a substitute, each railroad was permitted, by §§ 607 and 608 of that code, to escape ad valorem. state and county taxes by paying the privilege tax named in § 608. Now, the Natchez, Jackson & Columbus Railroad Co. is expressly named in § 608, and required to pay a privilege tax of thirty dollars per mile, if it would escape ad valorem state and county taxes. Manifestly no one can be found who would dispute the proposition that the exemption from privilege taxes ■ *318of that railroad was expressly repealed by § 608. But since this privilege tax was provided only secondarily, and as a means of escaping the ad valorem state and county taxes due by each railroad in the state, primarily imposed by § 597 el seq., it is plain that all the sections taken together expressly provide that the Natchez, Jackson & Columbus Rajilroad Company was to pay ad valorem taxes, state and county, unless it embraced the conditional exemption therefrom by paying the privilege tax assessed by § 608 eo nomine against it. There is no escape from this reasoning. If it be asked why, if the Natchez, Jackson & Columbus Railroad Company was expressly named in § 608, it was not so named in § 597 el seq., the obvious reason is that it was -necessary to expressly name it in imposing privilege taxes, since each railroad paid a different privilege tax, but it was unnecessary to name it in imposing ad valorem taxes, since the rate there was the same for all. And this leaves out of view whatever of force there may be in the suggestion that the phrases “each railroad/’ “every railroad,” etc., might be effective to include this railroad, with all others, as fully as if named in § 597. But as to this we say nothing.

^Finally,' it is said that this twenty-first section was given the L., N. 0. & T. R. R. Co. by independent grant in 1882, by its proper charter, after the code of 1880 had been adopted. But if the code of 1SS0 had the effect, as held in the Lambert case, to repeal by its provisions this section as applied to the Natchez, Jackson & Columbus Railroad Company, then a fortiori did the more emphatic provisions of the code of 1892 have the effect to repeal the same section as applied to the L., N. O. & T. R. R. Co. This last company could not be named in the code of 1880, since it did not come into existence until 1882.

It will be remembered that this third ground of our former opinion, that this alleged exemption was repealed by legislation, if it ever had a valid existence, was wholly uninfluential with the circuit judge on this second trial below, since it was for the first time made part of the opinion when the opinion *319in full was written and filed, wbicb was several months after the trial in the circuit court.

It is perfectly obvious, therefore, that the mere adding a new reason for the decision, which reason did not influence the second trial of the case, in no respect prejudiced the appellants in that trial. We discover no error, and the judgment is

Affirmed.