water commission for the purpose of pur- or request of the water company, but, on chasing or building a water plant is unconstitutional and void, and it is our purpose to stop the spending of any more of the people's money in that direction. the contrary, Park suggested the joinder of Wheeler because in his opinion, as her attorney, it was to her interest to be joined, provided she could be protected against "I desire to bring suit in the Federal costs and attorneys' fees; he so advised her, court, and therefore had to get permission and she accepted his advice and authorized of a nonresident taxpayer to bring suit, the suit. It is not true that the suit is one which accounts for my telegraphing you for brought solely in the interest or for the permission. benefit of the water company, but it is "You will not be charged with any ex-brought not only for the benefit of Wheeler pense or costs in the matter, either for court and Lusk, but of all other property owncosts or attorneys' fees; and I will see that ers, including the water company, which you are absolutely protected in every way is a large property owner, its property from any liability whatever. Thanking you being assessed for taxation at about $2,for permission to bring the suit in your 500,000, being approximately 2 per cent name, I remain." of the total assessed valuation of all prop erty within the city and county, and that, as Park was informed and believed, the The affidavit expressed the conclusion that the parties to the bill were improperly and collusively joined for the purpose of creat-water company, by reason of its large ining a cause cognizable in the United States circuit court, in the interest and at the cost of the Denver Union Water Company, neither of the parties having knowledge of the joinder with the other, or of any connection of the other with the cause, and having no interest which was so imperiled as to cause them to proceed on their own motion and at their own expense. The affidavits of Park and Moffat were filed in opposition to the motion to dismiss. Park's affidavit states the following: He is solicitor for complainants (appellants here). On June 11, 1911, the question of bringing a taxpayers' suit against the public utilities commission was brought to his attention by Mr. Gerald Hughes, and he was asked if he would be willing to bring such suit for Lusk; that Moffat had received a telegram from Lusk, authorizing him (Moffat) to retain counsel for him for the purpose of bringing suit in the Federal court. 847] *Wheeler then owned property within the city and county, subject to taxation for the expenditure of the commission. Park had been her legal adviser for some time, and he suggested to Hughes the advisability of joining her in the suit so that she might receive the same protection and benefit as Lusk, provided she could be protected against costs and counsel fees. Park believing it to be for ner interest to be so joined. He thereupon sent her the telegram and received the reply set out in the affidavit of Van Cise, and brought the suit for her and Lusk and all other taxpayers. The affidavit set out the property owned by her and Lusk, and that she is neither a stockholder nor & bondholder nor otherwise financially interested in the water company. It averred further as follows: It is not true that the suit was brought at the solicitation terest as a property owner and taxpayer, Federal court as might be necessary and proper to prevent further illegal expenditure of public funds affecting not only Lusk, but other taxpayers. Thereupon Moffat, with the consent and advice of Hughes, sent the telegrams set out in Van Cise's affidavit. Moffat, through Hughes, employed Park to institute the suit. Moffat informed Park that the water company would protect him in regard to expenses, but did not at that time inform him of the exchange of telegrams with Lusk. The latter's desire as a taxpayer to institute and maintain the suit 349] is averred, and it is denied that he is a stockholder and bondholder of the water company, or that he has further or other interest than that of a taxpayer. It is averred that the water company is interested in the litigation, and has a right not only to maintain its rights as a taxpayer, but, if it sees fit, to join in this suit as a nominal party. An affidavit of the members of the commission was filed, in reply in which they aver that they have not, nor has either of them, at any time, declared the purpose as charged against them in Moffat's affidavit, nor have they done anything which might be construed as a violation of the injunction of the circuit court. The cause referred to by Moffat, as they have been advised and believe, involves the same questions as the present controversy, and in the event that they shall be compelled to answer they will so set up and aver. to in a case over which it has by law jurisdiction, it is its duty to take such juris diction. Willcox v. Consolidated Gas Co. 212 U. S. 19, 40, 53 L. ed. 382, 394, 29 Sup. Ct. Rep. 192, 15 Ann. Cas. 1034; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 58, 56 L. ed. 327, 349, 38 L.R.A. (N.S.) 44, 32 Sup. Ct. Rep. 169. This court has repeatedly declared that it will not concern itself about the motives which actuated a litigant in bringing the suit, so long as the litigant was, at the time of bringing the suit, vested with a justifiable controversy within the jurisdiction of a Federal court. Blair v. Chicago, 201 U. S. 400, 448, 50 L. ed. 801, 821, 26 Sup. Ct. Rep. 427; Chicago v. Mills, 204 U. S. 321, 325, 51 L. ed. 504, 507, 27 Sup. Ct. Rep. 286; Re Metropolitan R. Receivership (Re Reisenberg) 208 U. S. 90, 107, 110, 52 L. ed. 403, 411, 412, 28 Sup. Ct. Rep. 219; Re Cleland, 218 U. S. 120, 123, 54 L. ed. 962, 964, 30 Sup. Ct. Rep. 647; Lanier v. Nash, 121 U. S. 404, 30 L. ed. 947, 7 Sup. Ct. Rep. 919; Cross v. Allen, 141 U. S. 528, 35 L. ed. 843, 42 Sup. Ct. Rep. 67; Lehigh Min. & Mfg. Co. v. Kelly, 160 U. S. 327, 40 L. ed. 444, 16 Sup. Ct. Rep. 307; Dickerman v. Northern Trust Co. 176 U. S. 181, 44 L. ed. 423, 20 Sup. Ct. Rep. 311. The question of contribution has frequently arisen in the circuit courts and in the circuit courts of appeals of the various circuits. Champagne Lumber Co. v. Jahn, 93 C. C. A. 532, 168 Fed. 510; Consumers' Gas Trust Woodside v. Ciceroni, 35 C. C. A. 177, 93 Co. v. Quinby, 70 C. C. A. 220, 137 Fed. 882; Fed. 1; New Albany Waterworks v. Louisville Bkg. Co. 58 C. C. A. 576, 122 Fed. 776; After the decision of the circuit court of appeals was announced, they consulted with their counsel as to whether drawing warrants for their salaries and the expenses of the litigation could be construed as a violation of the injunction of the circuit court in any particular, and only issued warrants upon the assurance of counsel that they were not prohibited from McEwen v. Harriman Land Co. 71 C. C. A. doing so. They also readily acquiesced in 163, 138 Fed. 797; Bowdoin College v. Merthe action of the auditor and treasurer of ritt, 63 Fed. 213; Mexican Nat. Coal, Timber the city in requesting an opinion of the & Iron Co. v. Frank, 154 Fed. 217. city attorney as to their official status, after which they issued three certificates with a view of testing their right and authority so to do in the state courts, and in so doing were advised that they were not in any manner transgressing the mandate of the court. They aver their intention of bringing suits in the discharge of their duties with a view of recovering certain money believed to be due from certain collectors of water rent, and such kindred matters as may arise from time to time, but not for the purpose of raising any question already raised or decided. The payment of solicitor's fees and costs in this case by the water company, under the authorities, did not constitute maintenance or champerty. Boone v. Chiles, 10 Pet. 177, 9 L. ed. 388; Burnes v. Scott, 117 U. S. 582, 589, 29 L. ed. 991, 993, 6 Sup. Ct. Rep. 865; Seaton Mountain Electric Light, H. & P. Co. v. Idaho Springs Invest. Co. 49 Colo. 131, 33 L.R.A. (N.S.) 1078, 111 Pac. 834; O'Driscoll v. Doyle, 31 Colo. 198, 73 Pac. 27; Cürrency Min. Co. v. Bentley, 10 Colo. App. 274, 50 Pac. 920; Duke v. Harper, 2 Mo. App. 1; Rucker v. Bolles, 67 C. C. A. 30, 133 Fed. Mr. Edwin H. Park argued the cause 862; Jahn v. Champagne Lumber Co. 157 and filed a brief for appellants: Fed. 407; Ross v. Ft. Wayne, 12 C. C. A. When a Federal court is properly appealed 627, 24 U. S. App. 506, 64 Fed. 1006; Mexi can Nat. Coal, Timber & Iron Co. v. Frank, | Litigation was threatened or believed to 154 Fed. 224. Collusion means something more than assistance of a litigant with funds, by a person who is directly interested in the result of the litigation. Dickerman v. Northern Trust Co. 176 U. S. 181, 190, 44 L. ed. 423, 430, 20 Sup. Ct. Rep. 311. Mr. W. H. Bryant argued the cause, and, with Messrs. William P. Malburn and Thomas R. Woodrow, filed a brief for appellees: Collusion is an agreement for wrongful purposes. be threatened in the state courts; in other words, there was a purpose to change the forum of the litigation and possibly its results. The belief may have been unfounded; it cannot be said that it was not honestly entertained. Against these circumstances what is opposed? It is said that the water company was the party who desired the suit to be brought, and that the suit was brought for its benefit, and at its instance and request, and upon an express contract to pay the costs of litigation and counsel fees which might be incurred. A great deal of this is assumption; the water company adBelz v. Belz, 33 Ill. App. 105. mits its interest, but the appellants [351 A case exactly in point is that of Cash-also have interest; but mere unity of interman v. Amador & S. Canal Co. 118 U. S. est or difference in its degrees is not enough; 58, 30 L. ed. 72, 6 Sup. Ct. Rep. 926. there must be an illegal purpose. If the inIn the matter of the jurisdiction of Fed-terest was real and the peril which threateral courts, the discrimination between suits between citizens of the same state and suits between citizens of different states is established by the Constitution and laws of the United States. And it has been the constant effort of Congress, and of this court, to prevent this discrimination from being evaded by bringing into the Federal court controversies between citizens of the same state. Bernards Twp. v. Stebbins, 109 U. S. 353, 27 L. ed. 960, 3 Sup. Ct. Rep. 252. An agreement to obtain an object forbidden by law fills the definition of collusion. Industrial & Min. Guaranty Co. v. Electrical Supply Co. 7 C. C. A. 471, 16 U. S. App. 196, 58 Fed. 743. Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court: The merits of the controversy are not involved. The sole question is whether there was collusion to give the court jurisdiction of the cause; and, of course, the existence of collusion implies the existence of fraud. Is fraud shown? Between the parties there is the requisite diversity of citizenship, requisite amount, and the complainants (appellants here) had such relation to the matters charged as to give them a standing to litigate their legality. They were solicited to bring the suit, however, and they were indemnified against liability for cost and counsel fees. Was this enough to make their proceeding collusive? To answer the question we must keep in mind the situation. The utilities commission was alleged to be an unconstitutional body and its expenditures illegal. Indeed, this had been decided; but injury from its action still impended, or was believed to impend. ened was real or thought to be real, unity of interest or contribution of expenses cannot be regarded as necessarily proof of collusion. Chicago v. Mills, 204 U. S. 321, 51 L. ed. 504, 27 Sup. Ct. Rep. 286. And the cases are numerous in which it has been decided that the motives of litigants in seeking Federal jurisdiction are immaterial. Blair v. Chicago, 201 U. S. 400, 50 L. ed. 801, 26 Sup. Ct. Rep. 427, and cases cited. Cashman v. Amador & S. Canal Co. 118 U. S. 58, 30 L. ed. 72, 6 Sup. Ct. Rep. 926, is relied on. The case is distinguishable from the case at bar. Cashman was an alien and brought suit against the canal company, claiming that his land was injured by the débris thrown on it by the working of certain mines by hydraulic process. The suit was instituted at the instance of the county of Sacramento, the county not being able to bring suit in the Federal court. There was a cause of action in Cashman; there was a disability on the part of the county to sue in the Federal court in its own name. So far there is resemblance to the case at bar, but there are material differences between the agreement in that case and the agreement between the parties in this. The county was to pay the expenses, engage counsel, and indemnify Cashman against all charges and expenses, and he stipulated "not to compromise, dismiss, or settle the said suit without the consent of the county of Sacramento, and to allow said county and the attorneys aforesaid in its behalf to manage and conduct the said suit to the same extent and in the same manner as if such suit had been commenced by and was prosecuted in the name of the said county of Sacramento." It is manifest, as this court said, from the very beginning, the suit was in reality the suit of the county, with a party plaintiff "collusively made" [For other cases, see Appeal and Error, 14651528, in Digest Sup. Ct. 1908.] for the purpose of creating a case cogniz-| the new claim of "good time" allowance was able "by the circuit court of the United untenable. 852] *States." In other words, as was said, the "dispute and controversy" which was "involved" was nominally between Cashman, an alien, and the defendants, cit [No. 1048.] izens of California, but was "really and Submitted May 12, 1913. Decided June 10, substantially" between one of the counties of California and citizens of that state, and 1913. thus not "properly within the jurisdiction" IN ERROR to the Supreme Court of the of the circuit court. The case at bar has no such features. It is not under the control of the water company. It was brought by appellants, they having a justiciable controversy, well or illfounded, and which it was desired to be determined in a Federal court, they being nonresidents of Colorado and citizens of other states. It is true, by the decision of this court in Denver v. New York Trust Co. 229 U. S. State of Michigan to review a judgment denying relief by habeas corpus to a convict whose parole had been annulled without notice. Dismissed for want of jurisdiction. See same case below, 169 Mich. 606, 135 N. W. 658. The facts are stated in the opinion. Mr. Fred A. Baker submitted the cause for plaintiff in error. Mr. Grant Fellows, Attorney General of Michigan, submitted the cause for defendants in error. Mr. Thomas A. Lawler, Assistant Attorney General, was brief: on the 123, ante, 1101, 33 Sup. Ct. Rep. 657, the merits of the controversy have been decided against them, but they must be judged as of the time their suit was begun; and, The question involved is a construction so judged, we think the suit was not collusively brought, and should not have been of the language of a state statute, not subdismissed for want of jurisdiction. The de-ject to review in this court. cree dismissing it is therefore reversed. Mr. Justice Day dissents. 858] JOHN A. ADAMS, Plff. in err., V. JAMES RUSSELL, Warden of State House of Correction and Branch of the State Prison at Marquette, Michigan, and the Advisory Board in the Matter of Pardons, Defts., in Err. (See 8. C. Reporter's ed. 353-362.) Error to state court Federal question decision on non-Federal ground. The denial by the highest court of a state of relief by habeas corpus, sought by a convict whose parole had been annulled without notice, cannot be reviewed by the Federal Supreme Court, where it can only be conjectured whether the state court entertained views adverse to those of the petitioner on the Federal questions presented, or whether it considered that its former decision on a prior petition presenting the same questions determined his rights, or whether the court thought that, as a matter of procedure, a rehearing was his remedy, or that NOTE. On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. 8. 884; and Kipley v. Illinois, 42 L. ed. U. S. 998. Great Western Teleg. Co. v. Purdy, 182 U. S. 329, 40 L. ed. 986, 16 Sup. Ct. Rep. 810; Phoenix Ins. Co. v. The Treasurer, (Phoenix Ins. Co. v. Gardiner) 11 Wall. 204, 20 L. ed. 112; Lloyd v. Matthews, 155 U. S. 222, 39 L. ed. 128, 15 Sup. Ct. Rep. 70; Grand Gulf R. & Bkg. Co. v. Marshall, 12 How. 165, 13 L. ed. 938; Central Land Co. v. Laidley, 159 U. S. 103, 40 L. ed. 91, 16 Sup. Ct. Rep. 80; Baltimore & P. R. Co. v. Hopkins, 130 U. S. 210, 32 L. ed. 908, 9 Sup. Ct. Rep. 503; Lambert v. Barrett, 159 U. S. 660, 40 L. ed. 296, 16 Sup. Ct. Rep. 135; Hooker v. Los Angeles, 188 U. S. 314, 47 L. ed. 487, 63 L.R.A. 471, 23 Sup. Ct. Rep. 395; Patterson v. Colorado, 205 U. S. 454, 460, 51 L. ed. 879, 880, 27 Sup. Ct. Rep. 556, 10 Ann. Cas. 689; A. Backus Jr. & Sons v. Fort Street Union Depot Co. 169 U S. 557, 571, 42 L. ed. 853, 859, 18 Sup. Ct. Rep. 445. Mr. Justice McKenna delivered the opinion of the court: Error to review the action of the supreme court of Michigan, denying plaintiff in error a writ of habeas corpus. *The facts, as alleged in the peti-[354 tion, are these: Plaintiff in error was con On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33. The supreme court, instead of granting a writ of habeas corpus as prayed, granted writ of certiorari to inquire into the cause of detention, under the authority of § 9889 of the Michigan Compiled Laws of 1897. The court also granted a common-law writ of certiorari to bring the record of the advisory board before it, and both writs were made returnable April 2, 1912. victed in the recorder's court of the city of | contemplate that a convict's parol will not Detroit of the crime of seduction, and sen- be annulled except when he violates the tenced to imprisonment for not less than terms and conditions of his parol or the two and one-half years, and for not more rules and regulations. (5) His term of imthan five years. The case was re-prisonment has expired. viewed by the supreme court of the state on & bill of exceptions and a writ of error, and the sentence and judgment of the court below affirmed. Pending the writ of error, he was released from imprisonment, but after his sentence was affirmed he was recommitted to prison, and ever since has remained there. He duly made application to the advisory board of pardons for a parole under act No. 184 of the Public Acts of 1905, as amended. On December 5, 1911, the board granted and delivered to the warden of the prison a certificate or warrant of parole by which he was paroled "for two months from and after January 29, 1912." On December 11, 1911, the action of the board paroling plaintiff in error was vacated, for the reason, as the records show, that it was at that date "in possession of facts not known at the time of such action." The warden was notified of the action of the board. This action of the board was without notice to plaintiff in error, and gave him no opportunity to be heard or to disprove the charge or facts alleged against him. Having served his minimum sentence, and having been granted a parole, he is not now imprisoned on any process, judgment, decree, or execution specified in the 8th section of the habeas corpus act of the state. On March 5, 1912, he presented a petition for a writ of habeas corpus to the supreme court of the state, in which he set up the facts of his case as above stated, and alleged the illegality of his imprisonment as follows: (1) The advisory board has no jurisdiction or authority to vacate the parole granted to him, the power and authority to retake and return any paroled convict to 355]the prison being within the exclusive jurisdiction and discretion of the warden or superintendent of the prison. (2) If the indeterminate sentence act is construed to confer such power upon the board without notice to the convict, then said act is in conflict with the provision of the Constitution of the state, which prohibits cruel and unusual punishment or the taking of life, liberty, or property without due process of law, and against the due process and equal protection clauses of the 14th Amendment to the Constitution of the United States. (3) If so construed, the convict would be twice punished for the same offense. (4) The indeterminate sentence act and the rules and regulations promulgated thereunder Returns were made to the writs, which plaintiff in error traversed so far as they set forth facts which were alleged in a communication to the board, attached to the returns. The case so made up was argued and submitted to the court on the 2d of April, 1912. The attorney general made no attempt to sustain the power or jurisdiction of the advisory board to annul a parole without notice to the convict, but contended that as the supreme court, in affirming the conviction of plaintiff in error, had held that the time he was out on bail should not be included in determining the length of his imprisonment, he was "subject to[856 imprisonment under the sentence for the unexpired part thereof remaining at the time of his release" (on bail), his minimum sentence not expiring until January 29, 1912, and his parole was void because his application was made and acted upon before the expiration of his minimum sentence. The court held that his parole was void on the ground taken by the attorney-general, and the petition was denied. 169 Mich. 606, 135 N. W. 658. Plaintiff in error and his counsel inadvertently overlooked the fact that he was entitled under the laws of Michigan to a deduction from his minimum sentence for the "good time" accorded to convicts in the prisons of the state. Under the laws of the state he had earned and was entitled during the first and second years of his sentence, to five days "good time" for each month, and, during the third year, to six days each month, making a total of one hundred and thirty-eight days, so that his minimum sentence of two years had expired before his application for parole. The prison parole law of the state has been in existence since 1905, and down to the decision of the supreme court in his case, it was the constant practice of the advisory board to receive and act upon applications of convicts before and in anticipa |