Opinion of the Court.

Knoop, 16 How. 369, 380; United States v. Railroad Co., 17 Wall. 322, 329; Philadelphia v. Fox, 64 Penn. St. 169; Mayor v. Jersey City & Bergen Railroad, 5 C. E. Green (20 N. J. Eq.), 360; Police Jury v. Shreveport, 5 La. Ann. 661, 665; State v. St. Louis County Court, 34 Missouri, 546, 552; People v. Morris, 13 Wend. 325, 331; Warner v. Beers, 23 Wend. 103, 126; City of Richmond v. Richmond & Danville Railroad, 21 Grattan, 604, 613; County of Richland v. County of Lawrence, 12 Illinois, 8; Trustees of Schools v. Tatman, 13 Illinois, 27, 30; Gutzweller v. People, 14 Illinois, 142; Sangamon County v. City of Springfield, 63 Illinois, 66, 71.

In the present case the 2d section of the act of February 18, 1862, has no more force than if the words "at all times hereafter" had been omitted; and the section is to be construed as if it only temporarily conferred the right of taxation on the township, subject to be recalled at the pleasure of the legislature. There is no element of private property in the right of taxation conferred upon a municipal corporation. Property acquired by paying for it with money raised by taxation is property. The legislation in question does not affect or interfere with any such property. The poor farm and the personal property thereon are not the property of the township of North Brunswick, but are the property of the corporation of the city of New Brunswick. Nor is there anything violative of any provision of the Constitution of the United States in the enactment of the legislature of New Jersey, that the property in question shall be exempt from taxation because it is used exclusively for charitable purposes. The long recognized and universally prevalent policy of making such exemption is a warrant for saying that the 2d section of the act of February 18, 1862, is fairly to be regarded as containing an implied reservation that such exemption might be thereafter made, as being the exercise of a public and governmental power, resting wholly in the discretion of the legislature, and not the subject of contract.

Judgment affirmed.

Statement of the Case.

THE ALASKA.1

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

THE SOUTHERN DISTRICT OF NEW YORK.

No. 1217. Submitted March 11, 1889.- Decided April 1, 1889.

STATES FOR

In a suit in admiralty, in rem, in a District Court, against a British steamship, brought by the widows of five persons, to recover $5000 each, for the loss of their lives, on board of a pilot-boat, by a collision which occurred on the high seas between the two vessels, through the negligence of the steamship, a stipulation for value was given by the claimant of the steamship, in the sum of $25,000, to obtain her release. The District Court dismissed the libel. It was amended by claiming $10,000 for the loss of each life, and then the libellants appealed to the Circuit Court, which made the same decree. The libellants having appealed to this Court, the appellee made a motion, under subdivision 5 of Rule 6, to dismiss the appeal for want of jurisdiction, and united with it a motion to affirm; Held, that the amount involved, if not the entire sum of $25,000, was, at least, the sum of $10,000 in each case, and that the motion to dismiss must be denied:

But as there was sufficient color for the motion to dismiss to warrant this court in entertaining the motion to affirm, the decree was affirmed, on the ground that the appeal was taken for delay only, in view of the decision in The Harrisburg, 119 U. S. 199, that in the absence of an act of Congress or of a statute of a State giving a right of action therefor, a suit in admiralty cannot be maintained in the courts of the United States to recover damages for the death of a human being on the high seas or on waters navigable from the sea, which was caused by negligence.

MOTIONS TO DISMISS OR TO AFFIRM. The court in its opinion stated the case as follows:

This is a motion to dismiss the appeal in this case, and united with it is a motion, under subdivision 5 of Rule 6, to affirm the decree below, on the ground that, although the record may show that this court has jurisdiction, it is manifest

1 The docket title of this case was Catharine A. Metcalfe, Mary E. Noble, et al., Appellants, v. The Steamship Alaska, her Engines etc., Lady D. E. Pearce, Sir William George Pearce, James Robertson, and Richard Barnwell, Executors of William Pearce, Deceased, Claimants.

Statement of the Case.

the appeal was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument.

The suit is a libel in rem, in admiralty, filed in the District Court of the United States for the Southern District of New York, by the owners of the pilot-boat Columbia, against the British steamship Alaska, to recover damages for the loss of the Columbia by a collision with the Alaska, on the 2d of December, 1883, on the high seas near the coast of Long Island, New York. The libel also embraced a claim for the loss of property and personal effects by some of the libellants. There was claimed for the loss of the pilot-boat, $16,000, and for the loss of the other property, $2100. It was alleged that the collision occurred solely through the negligence of the persons in charge of the Alaska. All the persons on board of the pilot-boat were drowned. Among them were four pilots and a cook. One of the four pilots was a part-owner of

the Columbia.

William Pearce, of Glasgow, Scotland, filed a claim to the Alaska, after her attachment, and also gave a stipulation for value, in the sum of $20,000, to secure the release of the Alaska from the claims for the loss of the Columbia and of the personal effects. A supplemental libel was filed by the widows of the four pilots and of the cook who were drowned, and in it four of them on behalf of themselves and infant children severally, and the other one on her own behalf, claimed in each of the five instances damages in the sum of $5000, for the loss severally of the lives of the persons so drowned. After the filing of the supplemental libel, Pearce gave a further stipulation for value, in the sum of $25,000, to secure the release of the Alaska from the claims for the loss of the five lives. The latter stipulation was in the following terms:

"Whereas a supplemental libel was filed on the 22d day of November, in the year of our Lord one thousand eight hundred and eighty-four, by Catherine A. Metcalfe, Mary E. Noble, Agnes Arnold, Mary Wolf, and Bella Forblade against the British steamship Alaska, her engines, etc., for the reasons and causes in the said libel mentioned; and whereas the said

Statement of the Case.

steamship Alaska, her engines, in the original action brought against said vessel by Augustus Van Pelt and others, was in the custody of the marshal under the process issued in pursuance of the prayer of the said libel; and whereas a claim to said vessel has been filed by William Pearce, and the value thereof has been fixed by consent at twenty-five thousand dollars for the purposes of this action, as appears from said consent now on file in said court; and the parties hereto hereby consenting and agreeing, that in case of default or contumacy on the part of claimant, or his surety, execution for the above amount may issue against their goods, chattels, and lands:

"Now, therefore, the condition of the stipulation is such, that if the stipulators undersigned shall at any time, upon the interlocutory or final order or decree of the said district court. or of any appellate court to which the above-named suit may proceed, and upon notice of such order or decree to Wilcox, Adams & Macklin, Esquires, proctors for the claimant of said steamship Alaska, her engines, etc., abide by and pay the money awarded by the final decree rendered by this court or appellate court, if any appeal intervene, then this stipulation to be void; otherwise to remain in full force and virtue."

Pearce put in exceptions and an answer to the libel and the supplemental libel, denying the liability. The District Court, on a hearing on pleadings and proofs, entered an interlocutory decree, adjudging that the collision was caused by the mutual fault of the Alaska and the Columbia, and referring it to a commissioner to ascertain the damages. 27 Fed. Rep. 704. The commissioner made his report, which was excepted to by both parties, and a decree was made by the District Court awarding to the libellants certain sums as damages for the loss of the Columbia and of personal effects, and dismissing the supplemental libel in respect of the damages claimed for the loss of lives.

Both parties appealed to the Circuit Court, the claimant on the ground that the libellants were not entitled to any damages, or, if to any, that the damages allowed were excessive; the libellants on the ground that they were entitled to full

Argument against the Motions.

damages, instead of only half damages, and that the value of the Columbia had been allowed at too small a sum; and the libellants in the supplemental libel on the ground that they were entitled to full damages. Before these appeals were perfected, it was consented by the parties that the supplemental libel might be amended so that the claim for the loss of life should be $10,000 in each of the five cases, instead of $5000.

The Circuit Court (33 Fed. Rep. 107) made a like decree with that of the District Court, finding that both vessels were in fault for the collision, and dividing the damages and the costs of both courts between the respective parties; and dismissing the supplemental libel for the loss of the lives, without costs of either court to either party.

The sums awarded by the decree of the Circuit Court were paid, and the libellants in the supplemental libel appealed to this court.

Mr. George Bethune Adams for the motions.

Mr. James Parker opposing.

The motion to dismiss cannot be granted, as it is clear that the amount in controversy exceeds the jurisdictional amount. Oliver v. Alexander, 6 Pet. 143; The Mamie, 105 U. S. 773; Ex parte Baltimore and Ohio Railroad, 106 U. S. 5; Davies v. Corbin, 112 U. S. 36. And it is well settled that the motion to affirm will not be entertained unless there is color of right to the other motion. Whitney v. Cook, 99 U. S. 607; Hinckley v. Morton, 103 U. S. 764; Micas v. Williams, 104 U. S. 556; Ackley School District v. Hall, 106 U. S. 428; Davies v. Corbin, 113 U. S. 687.

Should, however, this court deem it proper under the rule, to entertain the motion to affirm, we present the following in opposition to such action.

Such motion under subdivision 5 of Rule 6, can only be made upon two grounds. 1. That the appeal was taken for delay only. 2. That the same is so frivolous as not to need further argument.