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COPY  4 


/^ 


Author  and  Title 

United  States.  Supreme  Court. 
U.S.  Reports 


Call  Number 


KF 
101 

U55 


Volume 


215 


Copy 
4 


""*'•  SfJSKJSS*'  '•OT  CIRCULATE 
OUTIIOE  THE  BUILDING 


NAME 


LOCATION 


replacement  card 


10/16/79 


Otilted  States.  Supteaa  Coort. 
U.S.  leports 


U33!  I 


Vol, 
215 


Copy 
4 


•*  -"^   ■m^m^^^m 


UNITED  STATES  REPORTS 


VOLUME   215 


CASES  ADJUDGED 


IN 


THE  SUPREME  COURT 


AT 


OCTOBER  TERM,  1909 


CHARLES  HENRY  BUTLER 


BBPOBTBB 


THE  BANKS  LAW  PUBLISHING  CO, 

NEW  YORK 

1910 


'^^ 


1 


COPTRTOHT.  1009,  1010.  BT 

THE  BANKS  LAW  PUBLISHING  COMPANY 


^w  »'''^ 


JUSTICES 


OF  THK 


SUPREME    COURT^ 


OUBING  THE  TIME  OF  THESE  REPORTS. 


MELVILLE  WESTON  FULLER,  Chief  Justice. 
JOHN  MARSHALL  HARLAN,  Associate  Justice. 
DAVID  JOSIAH  BREWER,  Associate  Justice. 
EDWARD  DOUGLASS  WHITE,  Associate  Justice. 
RUFUS  W.  PECKHAM,^  Associate  Justice. 
JOSEPH  McKENNA,  Associate  Justice. 
OLIVER  WENDELL  HOLMES,  Associate  Justice. 
WILLIAM  R.  DAY,  Associate  Justice. 
WILLIAM  HENRY  MOODY,*  Associate  Justice. 
HORACE  HARMON  LURTON,^  Associate  Justice. 


GEORGE  WOODWARD  WICKERSHAM,  Attornbt  Gbotral. 
LLOYD  WHEATON  BOWERS,  Soucitor  Gensral. 
JAMES  HALL  McKENNEY,  Clerk. 
JOHN  MONTGOMERY  WRIGHT,  Marshal. 

^  For  allotment  of  The  Chief  Justice  and  Associate  Justices  among 
the  several  circuits  see  next  page. 

^  Mr.  Justice  Peckham  did  not  take  his  seat  on  the  bench  during 
October  Term,  1909.  He  died  at  his  home  in  Altamont  near  Albany, 
New  York,  on  Sunday,  October  24, 1909.   See  p.  v,  post, 

'  Mr.  Justice  Moody  was  absent  from  the  court  on  account  of  illness 
and  did  not  take  his  seat  upon  the  bench  until  January  31,  1910.  He 
did  not  participate  in  the  decision  of  any  of  the  cases  reported  in  this 
volume  which  were  argued  or  submitted  diuing  October  Term,  1910. 

*  Mr.  Justice  Lurton  of  Tennessee  was  appointed  to  succeed  Mr. 
Justice  Peckham  by  President  Taft  and  confirmed  by  the  Senate, 
December  20,  1909.  He  took  his  seat  on  the  bench,  January  3,  1910, 
but  took  no  part  in  the  decision  of  cases  reported  in  this  volume  which 
were  argued  or  submitted  prior  to  that  date. 


kM...        -  f 


SUPREME  COURT.  OF  THE  UNITED  STATES. 

ALLOTMENT  OF  JUSTICES,  JANUARY  10,  IQIO.^ 

Order:  There  having  been  an  Associate  Justice  of  this 
court  appointed  since  the  commencement  of  this  term. 

It  is  ordered  that  the  following  allotment  be  made  of  the 
Chief  Justice  and  Associate  Justices  of  this  court  among  the 
circuits,  agreeably  to  the  act  of  Congress  in  such  case  made  and 
provided,  and  that  such  allotment  be  entered  of  record,  viz : 

For  the  First  Circuit,  OUver  Wendell  Holmes,  Associate 

Justice. 
For   the  Second  Circuit,  Horace  H.  Lurton,  Associate 

Justice. 
For  the  Third  Grcuit,  William  H.  Moody,  Associate  Justice. 
For  the  Fourth  Circuit,  Melville  W.  Fuller,  Chief  Justice. 
For  the  Fifth  Grcuit,  Edward  D.  White,  Associate  Justice. 
For  the  Sixth  Circuit,  John  M.  Harlan,  Associate  Justice. 
For  the  Seventh  Circuit,  William  R.  Day,  Associate  Justice. 
For  the  Eighth  Circuit,  David  J.  Brewer,  Associate  Justice. 
For  the  Ninth  Circuit,  Joseph  McKenna,  Associate  Justice. 

^  For  the  last  preceding  allotment  see  2i4  U.  S.  iv. 


PROCEEDINGS  ON  THE  DEATH  OF 
MR.  JUSTICE  PECKHAM. 


SUPREME  COURT  OF  THE  UNITED  STATES, 


Monday,  October  25,  1909. 


Present:  The  Cfflsp  Justice,  Mr.  Justice  Harlan,  Mr. 
Justice  Brewer,  Mr.  Justice  White,  Mr.  Justice  Mc- 
Kenna,  Mr.  Justice  Holb^ss  and  Mr.  Justice  Day. 

The  Chief  Justice  said : 

''It  is  with  deep  sorrow  that  I  announce  the  passing  of  our 
eminent  coUea^e  and  dear  friend,  Mr.  Justice  Peckham. 
He  died  at  his  summer  home  at  Altamont  yesterday  even- 
ing, at  quarter  past  8,  The  court  will  transact  no  business, 
but  will  adjourn  until  next  Monday." 

Adjourned  imtil  Monday  next  at  12  o'clock. 

The  funeral  of  Mr.  Justice  Peckham  was  in  Albany,  New 
York,  on  October  27,  1909,  and  was  attended  by  the  Chief 
Justice  and  all  the  Associate  Justices  except  Mr.  Justice 
Moody,  who  was  detained  by  illness. 

A  meeting  of  the  Bar  of  the  Supreme  Court  of  the  United 
States  was  held  in  the  Court  Room  on  December  18,  1909. 
On  motion  of  the  Solicitor  General,  Mr.  Alton  B.  Parker  pre- 
fflded.  Addresses  were  made  by  Mr.  Alton  B.  Parker,  Mr. 
Elihu  Root,  Mr.  William  A.  Maury,  Mr.  Thomas  H.  Clark 
and  Mr.  Charles  E.  Patterson. 

A  committee  consisting  of  Mr.  Elihu  Root,  Chairman,  Mr. 
Philander  C.  Knox,  Mr.  Lloyd  W.  Bowers,  Mr.  Jacob  M,  Dick- 
inson, Mr.  William  A.  Maury,  Mr.  William  B.  Homblower,  Mr. 
John  G.  Johnson,  Mr.  Nathaniel  Wilson,  Mr.  Simon  W.  Rosen- 

V 


vi  PROCEEDINGS  ON  THE  DEATH  OF 

dale,  Mr.  Bernard  Carter,  Mr.  DeLancey  NicoU,  Mr.  Frank  P. 
Flint,  Mr.  Charles  E.  Patterson,  Mr.  William  F.  Mattingly,  pre- 
pared and  presented  resolutions  which  were  adopted,  and  the 
Attorney  General  was  requested  to  present  them  to  the  court. 


Monday,  January  10,  1910. 


Present:  The  Chief  Justice,  Mr.  Justice  Harlan,  Mr. 
Justice  Brewer,  Mr.  Justice  White,  Mr.  Justice  McKenna, 
Mr.  Justice  Holmes,  Mr.  Justice  Day  and  Mr.  Justice 

LURTOl^. 

Mr,  Attorney-General  Wickersham  addressed  the  court  as 
foUows: 

May  it  please  the  court,  I  am  requested  by  the  members  of 
the  bar  of  this  court  to  present  for  entry  upon  your  records 
the  resolutions  recently  adopted  expressing  their  profound 
sorrow  in  the  death  of  Mr.  Justice  Peckham  and  their  sin- 
cere tribute  to  his  high  character  and  eminent  service  to  the 
country.    These  resolutions  are  as  follows: 

"  Resolved,  That  the  bar  of  the  Supreme  Court  of  the  United 
States  deeply  deplore  the  death  of  Rufus  W.  Peckham,  asso- 
ciate justice  of  the  Supreme  Court,  and  desire  to  place  upon 
record  an  expression  of  the  respect  and  esteem  in  which  Jus- 
tice Peckham  was  held  and  of  regret  for  the  loss  which  the 
court,  the  bar  and  the  country  have  suffered  in  his  untimely 
death. 

"  For  twenty-four  years  he  was  an  able  and  successful  advo- 
cate at  the  bar  of  his  native  State  of  New  York.  For  twelve 
years,  by  the  election  of  his  people,  he  was  a  member  of  the 
highest  court  of  original  jurisdiction  and  of  the  court  of  last 
resort  of  that  State.  For  fourteen  years  he  sat  upon  the  bench 
of  the  Supreme  Court  of  the  United  States.  For  a  full  half 
century  he  served  the  cause  of  justice  without  fear  and  with- 
out reproach.    His  learning  and  strong  powera  of  reasoning 


MR,  JUSTICE  PECKHAM.  vii 

preserved  the  standards  of  the  law.  His  knowledge  of  affairs 
and  the  breadth  and  vigor  of  his  sjmipathies  with  the  life  and 
men  of  his  time  saved  his  judgments  from  pedantry  and  made 
them  effective  instruments  for  the  application  of  the  old  prin- 
ciples to  new  conditions.  His  published  opinions  constitute  a 
substantial  and  valuable  contribution  to  the  development  of 
American  law.  The  virile  and  courageous  independence  of  his 
strong  character,  its  integrity  and  its  purity,  created  and  justi- 
fied universal  confidence  in  his  judicial  acts.  The  influence  of 
his  life  and  the  effect  of  his  work  have  contributed  powerfully 
to  promote  that  respect  for  law  and  for  the  courts  of  our  coun- 
try which  underlies  aU  of  our  institutions. 

*' Resolved,  That  the  Attorney-General  be  asked  to  present 
these  resolutions  to  the  court,  with  the  request  that  they  be 
entered  upon  the  records,  and  that  the  chairman  of  this  meet- 
ing be  directed  to  send  to  the  family  of  the  late  Mr.  Justice 
Peckham  a  copy  of  the  resolutions  and  an  expression  of  our 
sympathy  for  them  in  the  loss  which  they  have  sustained." 

These  resolutions  of  the  bar  are  intended,  in  some  measure, 
to  express  not  alone  the  sense  of  personal  bereavement  which 
is  so  deeply  felt  by  the  immediate  friends  and  associates  of 
Mr.  Justice  Peckham,  but  a  just  and  fitting  estimate  of  his 
life  and  labors  as  they  are  known  and  esteemed  by  his  country- 
men. 

The  extent  of  the  contribution  to  the  work  of  this  court  of  a 
single  member  is  as  difficult  of  exact  ascertainment  as  is  his 
influence  upon  its  judgments.  Only  as  he  speaks  through  the 
published  opinions  which  he  is  directed  to  annoimce  can  the 
bar  or  the  people  know  the  extent  or  the  character  of  his  serv- 
ice. His  devotion  to  the  duties  of  his  high  place,  his  persua- 
sive insistence  upon  the  right  as  it  is  given  him  to  see  it,  his 
painstaking  industry,  his  aid  in  council,  his  personal  charac- 
teristics— all  these  are  attributes  which  intimate  friends  may 
know,  and  which  may  be  revealed  now  and  again  in  the 
convincing  earnestness  of  some  striking  opinion,  but  which 
have  their  full,  free  play  only  among  his  colleagues  on  the 
bench. 


viii  PROCEEDINGS  ON  THE  DEATH  OF 

Looking  back  with  this  light  upon  the  services  of  Rufus 
Wheeler  Peckham,  it  is  not  beyond  the  truth  to  say  that  in  the 
period  of  his  service  on  the  bench  no  man  contributed  more 
than  he  to  the  learning  and  development  of  the  law. 

He  came  of  a  family  of  lawyers  and  judges.  His  father,  his 
brother,  his  sons  made  this  profession  the  work  of  thdr  lives. 
Though  the  span  of  his  own  life  was  little  beyond  seventy 
years,  more  than  half  of  it  was  devoted  to  the  public  adminis- 
tration of  the  law  of  his  State  or  his  country.  Though  the 
period  of  his  service  in  this  court  was  less  than  fifteen  years,  it 
is  perhaps  not  too  much  to  say  that  in  no  other  period  of  our 
history  has  the  jurisprudence  of  the  coimtry  been  more  pro- 
foundly affected  by  the  new  conditions  and  the  new  problems 
that  have  arisen  as  incident  to  our  national  growth  and  de- 
velopment. It  has  been  largely  during  these  fifteen  years  that 
the  graver  questions  involved  in  the  effort  of  the  National 
Government  to  cope  with  the  great  industrial  problems  arising 
out  of  our  imexampled  commercial  expanaon  have  found  thdr 
way  to  this  court.  It  has  been  wholly  within  these  fifteen 
years  that  our  relations  with  foreign  possessions  and  the  in- 
terpretation of  our  laws  for  the  government  of  alien  peoples 
have  been  here  debated  and  determined. 

In  this  work  Ma.  Justice  Peckham  did  his  full  share.  No 
one  can  examine,  even  cursorily,  the  deliverances  of  this  court 
during  the  last  decade  and  a  half  without  being  impressed  by 
the  tremendous  volume  of  it  which  came  from  his  hand  and 
brain.  In  that  time  he  wrote  nearly  four  hundred  opinions. 
They  dealt  with  every  aspect  of  the  law.  But  more  striking 
than  the  number  is  the  fact  that  so  many  of  them  are  to-day, 
and  will  ever  remain,  the  leading  and  familiar  cases  upon  the 
great  questions  with  which  they  dealt.  No  tribute  to  the  life 
and  work  of  Mr.  Justice  Peckham  could  find  a  higher  sanc- 
tion than  the  mere  citation  of  his  opinions  in  such  cases  as 
Maxwell  v.  Dow,  Hopkins  v.  United  States,  the  Addyston  Pipe 
case,  the  Trans-Missouri  and  the  Joint  Traffic  Association 
cases,  Montague  v.  Lowry,  Lochner  v.  New  York,  Ex  parte 
Young,  which  reveal  his  great  learning  and  industry. 

But  we  can  not  gamer  up  his  work  as  men  would  bind  the 


MR.  JUSTICE  PECKHAM.  ix 

harvest  of  a  season.  It  has  enriched  the  whole  field  of  our 
national  jurisprudence,  and  for  aU  time  the  yield  will  be  the 
better  for  his  labor. 

If  it  please  the  court,  I  have  the  honor  to  move  that  the 
resolutions  adopted  by  the  bar  be  entered  at  laige  upon  the 
records  of  this  court. 

The  Chief  Justice  responded : 

The  resolutions  and  the  remarks  by  which  they  are  accom- 
panied will  be  spread  upon  our  records  as  deserved  tributes  to 
the  memory  of  the  brother  who  has  so  recently  been  taken 
from  us.  Whatsoever  things  are  true  and  honest,  just  and  of 
good  report,  these  are  the  things  which  the  record  of  the  life  of 
Mr.  Justice  Peckham  displays.  Its  most  striking  charac- 
teristic is  the  singlemindedness  of  his  devotion  to  judicial 
dutjr.  It  may  be  said  of  him  as  it  was  of  Mr.  Justice  Story 
that  'Mn  all  his  commerce  with  the  world  and  in  his  intercourse 
with  the  circle  of  his  friends  the  predominance  of  his  judicial 
character  was  manifest."  He  discharged  his  judicial  duties 
not  as  upon  compulsion,  but  because  he  loved  them.  It  ran 
in  his  blood,  and  he  profoimdly  believed  that  justice  was  'Hhe 
great  interest  of  man  on  earth." 

''As  a  man  thinketh,  so  is  he,"  and  as  this  man  was,  so  was 
his  style,  simple,  forcible,  and  direct.  He  aimed  to  do  sub- 
stantial justice  in  an  intelligible  way,  dealing  in  no  strained 
inferences,  nor  muddling  definite  results  by  qualifjdng  his 
qualifications. 

His  opinions  from  the  first  in  volume  160  of  our  reports  to 
the  last  in  volume  214  are  all  lucid  expositions  of  the  matter  in 
hand,  and  many  of  them  of  peculiar  gravity  and  importance  in 
the  establishment  of  governing  principles.  He  sought  to  avoid 
the  curse  denounced  on  the  removal  of  landmarks  while  merit- 
ing the  blessing  accorded  to  their  wise  reinforcement.  His 
death  is  a  serious  loss  to  the  cause  of  jurisprudence,  to  this 
court,  and  to  his  country.  I  cannot  trust  myself  to  speak  of 
the  loss  to  his  brethren  of  this  lovable  and  beloved  comrade. 
We  cannot  but  be  exceeding  sorrowful  as  we  recall  the  touch 


\ 


PRWKKDINGS  ON  THE  DEATH  OF 


\^l  Uu^  vtauiihi'U  haiul  and  the  sound  of  the  voice  that  is  still. 
*  l.o(  Ufei  aliUH)/'  sang  the  Lotos-Eaters^  ''what  is  it  that  will 
ii^t,"^''  We  tind  the  answer  in  the  example  of  this  distin- 
jiuiiihtHl,  faithful,  and  thorough  life  which,  "though  the  whole 
wiurW  turo  to  coal,  then  chiefly  lives." 

Mr,  KUhu  Root  presented  to  the  court  the  resolutions 
adopted  at  a  meeting  of  the  members  of  the  bar  of  the  State 
of  New  York  in  memory  of  Mr.  Justice  Peckham,  and  it  was 
ordered  that  they  be  placed  on  file. 

They  are  as  follows : 

New  York  State  Bar  Association. 

To  The  New  York  State  Bar  Association  : 

The  undersigned,  appointed  as  Committee  to  present  Reso- 
lutions to  this  Association  with  regard  to  the  late  Mr.  Justice 
Peckham,  hereby  present  the  accompanying  Resolutions. 
Dated  December  9,  1909. 

William  B.  Hornblower, 

Chairman. 
Joseph  H.  Choate, 
Alton  B.  Parker, 
Louis  Marshall, 
Francis  Lynde  Stetson, 
John  G.  Milburn, 

Committee. 

Resolutions  adopted  by  the  New  York  State  Bar  Associ- 
ation at  a  special  meeting  held  in  the  city  of  Albany  on  the 
evening  of  Thursday,  December  9,  1909 : 

Resolved,  That  the  New  York  State  Bar  Association  desires 
to  express  its  profound  sense  of  the  great  loss  which  the  Ju- 
diciary, the  Bar  and  the  public  at  large  have  suffered  by  the 
death  of  Mr.  Justice  Rufus  W.  Peckham,  Associate  Justice 
of  the  Supreme  Court  of  the  United  States.  The  members  of 
the  Bar  of  this,  his  native  State,  feel  that  loss  in  a  peculiar 
and  sp)ecial  degree,  and  we  adopt  the  following  memorial  to  be 
spread  upon  our  minutes. 


MR.  JUSTICE  PECKHAM.  xi 

Rufus  W.  Peckham  was  bom  in  the  city  of  Albany  in  1838. 
He  was  the  son  of  one  of  our  most  distinguished  jurists,  who 
rounded  out  his  career  by  serving  upon  the  Bench  of  the  high- 
est court  of  the  State,  and  whose  life  was  cut  short,  while  still 
in  the  full  vigor  of  his  powers,  by  a  terrible  catastrophe  at  sea. 
Bearing  his  father's  name  and  strongly  resembling  him  in  his 
physical,  mental  and  moral  characteristics,  Rufus  W.  Peck- 
ham  had  an  hereditary  claim  to  the  regard  and  esteem  of  his 
fellow-citizens  of  this  State.  His  is  one  of  the  rare  instances 
in  which  the  honors  of  the  father  have  descended  naturally  to 
the  son.  He  and  his  elder  brother,  Wheeler  H.  Peckham,  be- 
came eminent  members  of  the  profession,  and  achieved  for 
themselves  a  distinction  worthy  of  that  which  had  been  be- 
queathed to  them  by  their  father. 

Rufus  W.  Peckham  practised  law  for  many  years  in  the 
city  of  Albany  with  ability  and  success.  He  was  a  man  of  vig- 
orous and  forceful  character;  frank  and  outspoken  and  coura- 
geous in  every  relation  of  life.  In  the  practice  of  his  profes- 
sion he  won  the  respect  and  admiration  of  his  brethren  of  the 
Bar,  the  members  of  the  Bench  and  the  public  at  large. 

He  was  elected  a  justice  of  the  Supreme  Court  of  this  State 
more  than  twenty-five  years  ago,  and  until  his  death  he  re- 
m^dned  continuously  in  judicial  office,  so  that  to  very  few  of 
the  members  of  this  Association  was  he  known  otherwise  than 
as  a  judge,  and  for  most  of  us  it  is  difficult  to  think  of  him 
except  as  we  remember  him  in  the  performance  of  his  judi- 
cial functions,  or  as  we  met  him  personally  and  socially,  from 
time  to  time,  during  his  judicial  career. 

Elected  to  the  Supreme  Court  of  this  State  in  1883;  trans- 
ferred to  the  Court  of  Appeals  of  the  State,  January  1,  1887, 
and  to  the  Supreme  Court  of  the  United  States  in  January, 
1896,  and  djdng  in  the  full  vigor  of  his  ripe  manhood  in  1909, 
while  still  serving  on  the  Bench,  he  has  been  to  the  members 
of  the  Bar  of  this  State  for  a  quarter  of  a  century  our  ideal 
of  judicial  character  and  conduct.  His  intellectual  perceptions 
were  keen  and  p)enetrating ;  his  power  of  analysis  of  intricate 
questions  of  fact  and  law  were  unexcelled;  his  terse,  forcible 
and  vigorous  expressions  of  his  conclusions,  as  embodied  in 


xii  PROCEEDINGS  ON  THE  DEATH  OF 

the  opinions  which  he  from  time  to  time  delivered  in  the  va- 
rious courts  of  which  he  was  a  member,  will  always  remain  to 
illmninate  the  path  of  searchers  for  the  doctrines  of  our  ju- 
risprudence, as  set  forth  in  judicial  decisions.  His  absolute 
and  unyielding  impartiality  and  integrity  were  such  marked 
characteristics  that  it  was  impossible  for  any  one  to  so  much 
as  suspect  that  he  was  conscious  of  either  fear  or  favoritism, 
no  matter  who  were  engaged  in  a  cause  before  him,  or  what 
might  be  the  interests  involved.  It  was  impossible  for  Rufus 
W.  Peckham  to  think  except  in  a  straight  line  from  premise 
to  conclusion,  according  to  the  logic  and  reason  of  the  case  as 
he  saw  them.  All  must  agree  that  the  conclusions  reached  by 
Judge  Peckham  were  the  honest  conclusions  of  an  open- 
minded  judge,  and  they  were  expressed  in  clear  and  convincing 
language  which  bespoke  the  sincerity  and  the  ability  of  the 
man. 

Not  only  was  Judge  Peckham  our  ideal  of  a  judge  in  abil- 
ity, character  and  conduct,  but  he  had  the  judicial  manner 
upon  the  Bench;  always  courteous  yet  dignified;  his  occasional 
colloquies  with  counsel  arguing  before  the  court  were  always 
with  the  purpose  of  acquiring  information  or  obtaining  the 
views  of  counsel,  and  not  with  the  purpose  of  indulging  in  con- 
troversy. His  keen  and  incisive  questions  to  counsel  left  no 
doubt  of  his  deare  to  arrive  at  the  very  truth  of  the  case,  and 
left  no  sting  behind. 

And  now,  what  shall  we  say  of  Judge  Peckham  as  a  man 
and  as  a  friend?  As  we  have  already  said,  there  are  few  of  us 
who  can  remember  him  in  the  days  before  he  became  a  judge 
in  the  freedom  from  restraint  and  reserve  of  ordinary  profes- 
sional life.  But,  to  those  of  us  who  knew  him  only  as  a  judge, 
when  he  was  surrounded  to  some  extent  by  that  undefined, 
but  always-felt  distinction  between  the  Bench  and  the  Bar, 
Judge  Peckham  preserved,  even  after  he  became  a  Justice  of 
the  Supreme  Court  of  the  United  States,  a  geniality  and  a 
kindliness  which,  in  social  intercourse,  made  him  peculiarly 
attractive.  We  would  not  call  him  affable,  for  that  implies  a 
certain  amount  of  condescension,  and  there  was  nothing  of 
condescension  about  Rufus  Peckham.    He  never  seemed  con- 


MR.  JUSTICE  PECKHAM.  xiii 

• 

scious  of  his  honors,  nor  did  he  feel  it  necessary  to  maintain  an 
attitude  of  judicial  reserve,  but  to  his  dying  day  he  was  the 
same  hearty,  outspoken,  warm-hearted  Rufus  Peckham  that 
some  of  us  knew  in  our  earlier  days. 

It  is  hard  for  us  to  realize  that  the  life  and  the  judicial 
career  of  this  eminent  son  of  New  York  State  are  at  an  end. 
His  sturdy  inteUectual  honesty,  his  absolute  and  exclusive  de- 
votion to  judicial  duty,  and  his  sterling  common  sense,  made 
him  an  invaluable  member  of  the  great  tribunal  which  he  so 
fitly  graced.  The  influence  which  he  has  exerted  upon  the 
jurisprudence  of  this  State  and  of  this  country  cannot  be  over- 
estimated. As  has  been  frequently  remarked,  it  is  one  of  the 
advantages  which  the  judicial  function  possesses  over  that  of 
the  advocates  of  the  Bar,  that  while  the  fame  of  the  latter  van- 
ishes, with  rare  exceptions,  with  the  brain  and  the  voice  which 
gave  it  life,  the  fame  of  the  former  is  written  imperishably  in 
the  volumes  of  official  reports,  which  will  be  handed  down 
from  generation  to  generation.  The  name  and  the  fame  of 
Rufus  W.  Peckham  will  last  as  long  as  the  decisions  of  the 
Court  of  Appeals  of  this  State  and  of  the  Supreme  Court  of  the 
United  States  are  quoted  as  authority. 

This  Association  extends  to  the  bereaved  widow  and  family 
our  deepest  and  profound  S3mipathy,  and  begs  to  assure  them 
that  the  members  of  the  Bar  of  this  State  are  fellow-mourners 
with  them  in  their  great  loss. 

I  hereby  certify  that  the  foregoing  is  a  correct  copy  of  the 
Resolutions  adopted  upon  the  report  of  the  Committee,  ap- 
pended hereto,  at  the  special  meeting  of  the  New  York  State 
Bar  Association,  called  to  commemorate  the  life  and  services 
of  the  late  Mr.  Justice  Peckham,  which  meeting  was  held  on 
Thursday,  December  9, 1909,  in  the  Assembly  Chamber  in  the 
Capitol  in  the  city  of  Albany,  N.  Y. 

[seal.]  Frederick  E.  Wadhams, 

Secretary. 

Dated  Albany,  N.  Y.,  December  16, 1909. 


SUPREME  COURT  OF  THE  UNITED  STATES. 

Amendment  to  sec.  7  of  rule  24.^ 

October  Term,  1909. 

ORDER. 

It  is  ordered  by  the  court  that  §  7  of  rule  24  be,  and  the  same 
is  hereby,  amended  so  as  to  read  as  follows: 

"For  preparing  the  record  or  a  transcript  thereof  for  the 
printer,  indexing  the  same,  supervising  the  printing,  and  dis- 
tributing the  printed  copies  to  the  justices,  the  reporter,  the 
law  library,  and  the  parties  or  their  counsel,  fifteen  cents  per 
folio;  but  when  the  necessary  printed  copies  of  the  record,  as 
printed  for  the  use  of  the  lower  court,  shall  be  furnished,  the 
fee  for  supervising  shall  be  five  cents  per  folio. 

"  For  every  printed  copy  of  any  opinion  of  the  C!ourt  or  any 
justice  thereof,  certified  under  seal,  two  dollars." 

(Promulgated  January  10,  1910.) 

^  For  all  rules  of  the  Supreme  Court  of  the  United  States  see  210  U.  S. 
441. 


xiv 


TABLE  OF  CONTENTS. 


TABLE  OF  CASES  REPORTED. 


PAOB 


Abril  V.  Modesto  Cobian  y  Muniz 612 

Acord  V.  Western  Pocahontas  Corporation    .        .        .    607 
Adelbert  College   of  Western   Reserve  Univeraity  v. 

Wabash  Railroad  Company 598 

iEtna  Indemnity  Company  v.  Farmers'  National  Bank 

of  Boyertown 601 

Albany  &  Susquehanna  Railroad  Company,  Delaware 

&  Hudson  Company  v 601 

American    Bonding   Company   of   Baltimore,    United 

States  V 616 

'                American  Exchange  National  Bank's  Receiver,  Ken- 
yon  t; 693 

American  Lava  Company,  Kirchberger  v.      .        .        .    161 

I  American  Lava  Company,  Steward  v 161 

American  Manufacturing  Company  v.  The  Steamship 

j  Wildenfels 697 

I  American    National    Bank    of   Abilene,    Receiver   of, 

I  Hanover  National  Bank  of  New  York  v.   .  110,  122 

American  Trust  Company  of  Boston  v.  W.  &  A.  Fletcher 

Company 600 

American  Wood  Working  Machinery  Company  v.  The 

Union  Trust  Company 696 

Anderson  v.  United  States 618 

Androvette  v.  Steamship  Baralong      ....    600 

Ashbum,  Graves  v 331 

Atchison,  Topeka  <fe  Santa  Fe  Railway  Company  v. 

Kckens 617 

Atchison,  Topeka  &  Santa  Fe  Railway  Company  v. 

Sewell 612 

(XV) 


xvi  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

Atlantic  Coast  Line  Railroad  Company  v.  Geraty  .  616 
Atlantic  Coast  Line  Railroad  Company,  Macon  Grocery 

Company  v 501 

Atlantic   Mutual  Insurance  Company,   Hood  Rubber 

Company  v 601 

Axman,  United  States  v 617 

Bach  Fur  Company,  Pfaelzer  v 584 

Baltimore  &  Ohio  Railroad  Company,  Haynes  v.        .  608 
Baltimore  &  Ohio  Railroad  Company  v.  Interstate  Com- 
merce Commisfflon 216 

Baltimore  &  Ohio  Railroad  Company  v.  United  States 

ex  rd.  Ktcaim  Coal  Company      ....  481 
Bank  (American  Nat.,  of  Abilene),  Hanover  National 

Bankt? 110,  122 

Bank  (Citizens'  Sav.),  City  of  NewburjTport  v.    .        .  598 

Bank  (Collin  Co.  Nat.),  Hughes  v 618 

Bank  (Farmers'  Nat.),  iEtna  Indemnity  Company  v.  601 

Bank  (Rrst  Nat.)  v.  Estherville 341 

Bank  (Hanover  Nat.)  v.  Suddath    ....    110,  122 
Bank  and  Trust  Company  (Canal-Louisiana),  Water- 
man V 33 

Baralong,  The,  Androvette  v 600 

Barker  v.  Butte  Consolidated  Mining  Company    .        .  584 

Baruch,  United  States  v 610 

Bayamo,  The,  Jacksonville  Towing  &  Wrecking  Com- 
pany v 606 

Bergan,  Fries-Breslin  Company  v 609 

Berger  v,  Tracy 594 

Boland  v.  The  Steam  Vessel  Oceanica    ....  599 
Brandenstein,    Helvetia-Swiss    Fire    Insurance    Com- 
pany V 588 

Brenizer,  Royal  Arcanum  v 612 

Brill  V.  Washington  Railway  and  Electric  Company      .  527 

Brown,  Huey  v 598 

Buck's  Stove  &  Range  Company,  Gompers  v.        .        .  605 


TABLE  OF  CONTENTS.  xvu 

Table  of  Cases  Reported. 

PAOB 

Butte  Consolidated  Mining  Company,  Barker  v.         .    584 


Calderon,  The,  New  York,  New  Haven  &  Hartford 

Railroad  Company  v 599 

California  Development  Company  v»   New  Dverpool 

Salt  Company 603 

California  Development  Company,  New  Liverpool  Salt 

•     Company  v 606 

Caliga  V,  Inter  Ocean  Newspaper  Company            .        .  182 
Canal-Louisiana  Bank  and  Trust  Company,  Executor, 

Waterman  v. 33 

Cardwell  v.  United  States 599 

Castleman,  Mechanical  Appliance  Company  v.    .        .  437 

Celestine,  United  States  v 278 

Central    of    Georgia    Railway    Company    v.    Wright, 

Comptroller-General  of  Georgia       ....  617 
Chapman,  Yellow  Poplar  Lumber  Company  v.    .        .  601 
Chicago  &  Alton  Railroad  Company,  Interstate  Com- 
merce Commission  v 479 

Chicago  Great  Western  Railway  Company's  Receivers, 

Interstate  Commerce  Commission  v.      .        .        .98 
Chicago,   Rock   Island  &  Pacific  Railway  Company, 
Ludwig,  as  Secretary  of  State  of  the  State  of 

Arkansas,  v 615 

Citizens'  Savings  Bank,  City  of  Newburyport  v.    .        .  598 

CSty  of  Melrose,  Dyer  v 594 

City  of  Minneapolis  v.  Minneapolis  Street  Railway  Com- 
pany         417 

City  of  Murfreesboro,  Nelson  v 617 

CSty  of  Newburyport  v.  Citizens'  Savings  Bank    .        .  598 

City  of  New  Orleans,  Louisiana  ex  rd.  Hubert  v.        .  170 

CSty  of  Ottumwa,  International  Textbook  Company  v.  614 

City  and  County  of  San  Francisco,  Eddy  v,        .        .  604 

CSty  Council  of  Estherville,  ISrst  National  Bank  v.        .  341 

Coal  Company  (Dering)  v.  Hutton       ....  604 

Coal  Company  (Fairmont)  Kuhn  v.         ....  349 


xviii  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

PAOX 

Coal  Company  (Pitcaim)  Baltimore  &  Ohio  Railroad 

Company  v 481 

Coal  Company  (Richmond)  Commercial  Union  Assur- 
ance Company  v 609 

Cobian  y  Muniz,  Abril  v 612 

Coffield  V,  Fletcher  Manufacturing  Company        .        .    603 
Coler  (New  Mexico  ex  rd,),  Commissioners  of  Santa  Fe 

County  V 296 

Collier,  Goessling  v 596 

Collin  County  National  Bank,  Hughes  v.      ,        .        .    618 
Commerce  Commission,  Baltimore  and  Ohio  Railroad 

.  Company  v 216 

Commerce  Commission  v.  Chicago  &  Alton  Railroad 

Company 479 

Commerce  Commission  v.  Illinois  Central  Railroad  Com- 
pany        452 

Commerce  Commission,  Southern  Pacific  Company  v.    226 
Commerce  Commission  v,  Stickney  and  others,   Re- 
ceivers of  the  Chicago  Great  Western  Railway 

Company 98 

Commercial  Mica  Company  v.  Mica  Insulator  Company    604 
Commercial  Union  Assurance  Company  v.  Richmond 

Coal  Company 609 

Commissioners  of  the  District  of  Columbia,  Washington 

Gas  Light  Company  v 614 

Commissioners  of  Lincoln  Park  v.  Westrumite  Company 

of  America 610 

Commissioners  of  Santa  F^  County  v.  Territory  of  New 

Mexico  ex  reL  Coler 296 

Comptroller-General   of   Georgia,    Central   of  Geor^a 

Railway  Company  v 617 

Consolidated  Barb  Wire  Company's  Receiver,  Henley  v.    373 
Corbett  v.  Craven.     See  Kenney  v.  Craven        .        .    125 

Corbett,  United  States  v 233 

Cox  V.  Hoy,  United  States  Marshal  for  tho  Northern 

District  of  Illinois 619 


TABLE  OF  CONTENTS.  xix 
Table  of  Cases  Reported. 

PAttB 

Craven,  Corbett  v.    See  Kenney  v.  Craven    .        .        .  125 

Craven,  Kenney  v 125 

Creecy,  Marbles  v 63 

Crook  V.  International  Trust  Company  of  Maryland    .  613 

Cudahy  Packing  Company  v.  State  of  Minnesota  .  618 
Cmnberland  Lumber  Company,  Tunis  Lumber  Company 

V 603 

Davis  t;.  United  States 607 

Delaware  &  Hudson  Company  v.  Albany  &  Susquehanna 

Railroad  Company 601 

Dering  Coal  Company  v.  Hutton 604 

De  Winter,  Thomas  t; 609 

District  of  Columbia  Commissioners,  Washington  Gas 

Light  Company  v 614 

Dobrinski,  Haffner  v 446 

DuBois  Sons  Company  v.  Steam  Tug  Eugene  F.  Moran  596 
DuBois  Sons  Company  v.  New  York  Central  4  Hudson 

River  Railroad  Company 596 

Dufaur  v.  United  States 615 

Dyer  t;.  City  of  Melrose 594 

Eastin,  Fall  v 1 

Eddy  V.  City  and  County  of  San  Francisco  .  •  ,  604 
Edison  Electric  Light  Company,  Novelty  Licandescent 

Lamp  Company  v .  596 

Elias  V.  Ramirez 398 

El  Paso  &  Northeastern  Railway  Company  v.  Gutierrez  87 

Equitable  Life  Assurance  Society,  Keiper  v.                .  606 

Estherville,  First  National  Bank  v 341 

Eugene  F.  Moran,  The,  Henry  DuBois  Sons  Company  v.  596 

Everett  V.  Everett 203 

Ex  parte  United  States  Consolidated  Seeded  Raisin 

Company 591 

Fairmont  Coal  Company,  Kuhn  v 349 

Fairmont  Coal  Company  v.  Merchants'  Coal  Company  614 


XX  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

PAOX 

Fall  V.  Eastin 1 

Farmers'  National  Bank  of  Boyertown,  /Etna  Indemnity 

Company  v 601 

Ferrell,  Frame  v 605 

Ferryboat  Lackawanna,  Harris  v.          ....  597 

flanza,  Reavis  v 16 

Fire  Insurance  Company  (Helvetia-Swiss)  v.  Brandenstein  588 

First  National  Bank  v.  City  Council  of  Estherville        .  341 

Flaherty  (North  Dakota  ex  rd,)  v.  Hanson    .        .        .  515 

Fleming  v.  McCurtain 56 

Fletcher  Company,  American  Trust  Company  v.        .  600 

Fletcher  Manufacturing  Company,  CoflBeld  v.    .        .  603 

Folmina,  The,  V.  Jahn    .  ' 608 

Fomoff,  Mullen  v. 615 

Fowler,  Receiver  of  American  Exchange  National  Bank 

of  Syracuse,  Kenyon  v 593 

Fox,  Stanclift  v 619 

Freeman,  United  States  v 602 

Fries-Breslin  Company  v,  Bergan 609 

Gassert,  Strong  v. 583 

Geraty,  Atlantic  Coast  Line  Railroad  Company  v.        .  616 

Goessling  v.  Collier 596 

Gompers  v.  Buck's  Stove  &  Range  Company        .        .  605 

Graham,  Peale,  Peacock  &  Kerr  v 607 

Grand  Lodge  of  Kentucky,  Free  and  Accepted  Masons, 

Weber  v. 606 

Graves  v.  Ashbum 331 

Greenwood,  Watson  v 599 

Griesa,  Mutual  life  Insurance  Company  v.    .        .        .  600 
Guaranty  Trust  Company  v.  Metropolitan  Street  Rail- 
way Company 587 

Guaranty  Trust  Company  of  New  York  v.  Metropolitan 

Street  Railway  Comp?iny 603 

Guaranty  Trust  Company  of  New  York,  Morton  Trust 

Company  v 603 


TABLE  OF  CONTENTS.  xxi 

Table  of  Casea  Reported. 

Gutierrez,  El  Paso  &  Northeastern  Railway  Company  v.      87 


Hadley  v.  Scoville 612 

Haflfner  v.  Dobrinski 446 

Halligan  v.  Trinidad  Shipping  &  Trading  Company        .  614 
Hanover  National  Bank  of  New  York  v.  Suddath,  Re- 
ceiver of  American  National  Bank  of  Abilene    110,  122 
Hanson,  Sheriff  of  Grand  Forks  County,  The  State  of 

North  Dakota  ex  rd.  Flaherty  v.        .        .        .  515 
Harris,  Late  Owner  of  the  Steam  Tug  De  Veaux  Powel, 

V.  The  Ferryboat  Lackawanna      ....  597 

Harris,  Union  Pacific  Railroad  Company  v.        .        .  386 

Haskell  (Oklahoma  ex  rd.),  Huston  v 592 

Hawaii,  Lowrey  v 554 

Ha3mes  v,  Baltimore  &  Ohio  Railroad  Company             .  608 
Helvetia-Swiss  Fire  Insurance  Company  v,  Brandenstein  588 
Henderson-White  Manufacturing  Company,  Ward  Lum- 
ber Company  t; 612 

Henley  v.  Myers,  Receiver  of  Consolidated  Barb  Wire 

Company 373 

Henry  DuBois  Sons  Company  v.  Steam  Tug  Eugene  F. 

Moran 596 

Henry  DuBois  Sons  Company  v.  New  York  Central  & 

Hudson  River  Railroad  Company    ....  596 

Herbert,  Wagg  v 546 

ICnes,  Scott  County  Macadamized  Road  Company  v.  336 
Hitchcock,  Secretary  of  the  Interior,  Irrigation  Land  & 

Improvement  Company  v 613 

Hobbs,  Hub  Construction  Company  v 598 

Hood  Rubber  Company  v,  Atlantic  Mutual  Insurance 

Company 601 

Hoy,  United  States  Marshal  for  the  Northern  District  of 

Illinois,  Cox  v 619 

Hub  Construction  Company  v.  Hobbs    ....  598 
Hubert  (Louisiana  ex  rd.)  v.  Mayor  and  Council  of  New 

Orleans 170 


xxu  TABLE  OF  CONTENTS. 

Table  of  CSaaes  Reported. 

Huey  V.  Brown 598 

Hughes  V.  Collin  County  National  Bank  .  .  .  618 
Huston,  Judge,  v.  State  of  Oklahoma  ex  rd.  Haskell, 

Governor 692 

Hutton,  Dering  Coal  Company  v 604 

Hygienic  Chemical  Company  of  New  Jersey,  Rumford 

Chemical  Works  v, 156 

Hy^enic  Chemical  Company  of  New  York  v.  Rumford 

Chemical  Works 156 

Ibex  Mining  Company,  Van  Sice  v 607 

Illinois  Central  Railroad  Company,   Interstate  Com- 
merce Commission  v 452 

Illinois  Central  Railroad  Company  v,  Sheegog  .  .  308 
Indemnity   Company    (iEtna)    v.    Farmers'    National 

Bank  of  Boyertown 601 

Insular  Government  of  the  Philippine  Islands,  Tlglao  v.  410 
Insurance  Company  (Atl.  Mut.),  Hood  Rubber  Com- 
pany!;   601 

Insurance  Company  (Helvetia-Swiss)  v.  Brandenstein  588 

Insurance  Company  (Liverpool  &L.&  G.)  v.  McFadden  604 

Insurance  Company  (Met.  life)  v.  Williamson  .  608 

Insurance  Company  (Mut.  life  of  N.  Y.)  v.  Griesa  .  600 
Interior    Construction    and    Improvement    Company, 

Lathrop,  Shea  &  Henwood  Company  v.  .  246 

International  Textbook  Company  v.  City  of  Ottumwa  614 

International  Trust  Company,  Crook  t?.       .        .        .  613 

Inter  Ocean  Newspaper  Company,  Caliga  v.  .  .  182 
Interstate  Commerce  Commission,  Baltimore  and  Ohio 

Railroad  Company  v 216 

Interstate  Commerce  Commission  v.  Chicago  4  Alton 

Railroad  Company 479 

Interstate  Commerce  Commission  v,  Illinois  Central 

Railroad  Company 452 

Interstate   Commerce    Commission,    Southern    Pacific 

Company  v 226 


TABLE  OF  CONTENTS,  xxiU 
Table  of  Cases  Reported. 

rAOB 

Interstate    Commerce    Commission    v.    Stickney    and 
others,  Receivers  of  the  Chicago  Great  Western 

Railway  Company 98 

Iowa,  Thomas  v 591 

Irrigation  Company  (Rio  Grande)  v.  United  States        .  266 
Irrigation  Land  &  Improvement  Company  v.  Hitchcock, 

Secretary  of  the  Interior 613 

Jacksonville  Towing  &  Wrecking  Company  v.  Steam- 
ship Bayamo 606 

m 

Jahn,  Steamsliip  Folmina  v 608 

JeflFerson,  The 130 

Jefferson,  The,  Simmons  v.    See  Steamship  Jefferson    .  130 

Jerome  H.  Remick  &  Company  v.  Stem      .        .        .  585 

Johnson,  Mills  v 590 

Julian,  Kansas  City  Star  Company  v.        .        .        .  589 

Kansas,  Plamondon  v 615 

Kansas  City  Star  Company  v.  Julian     .        .        .        .  589 

Keiper  v.  Equitable  Life  Assurance  Society        .        .  606 

Kenney  v.  Craven 125 

Kentucky,  Rand,  McNally  &  Co.  i; 582 

Kenyon  v.  Fowler,  Receiver  of  American  Exchange 

National  Bank  of  Syracuse 593 

Kerrch  v.  United  States 602 

King  V.  State  of  West  Virginia 616 

Kirchberger  v.  American  Lava  Company      .        .  161 

Kirven,  Virginia-Carolina  Chemical  Company  v.        .  252 

Komada  &  Co.  v.  United  States 392 

Kuhn  v.  Fairmont  Coal  Company 349 

Kuykendall  v.  Union  Pacific  Railroad  Company        .  602 

Lackawanna,  The,  Harris  v 597 

Ladd,   Metropolitan  Securities  Company  v.                .  603 
Land  Conmiissioner  of  the  State  of  Washington,  Mc- 

Gilvra  and  Bressler  v 70 


xxiv  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

PAGE 

Lane  Bros.  Co.,  Virginia  Passenger  &  Power  Co.  v.  .  610 
Lathrop,  Shea  &  Henwood  Company  v.  Literior  Con- 
struction and  Improvement  Company  .  .  .  246 
Lava  Company  (American),  Kirchbeiger  v.  .  .  161 
Lava  Company  (American),  Steward  v.  .  .  ,  161 
life  Assurance  Society  (Eq.),  Keiper  v.  .  .  .  606 
life  Insurance  Company  (Met.)  v.  Williamson  .  .  608 
Life  Insurance  Company  (Mutual  of  N.  Y.)  v.  Griesa  .  600 
Lincoln  Park  Commissioners  v.  Westrumite  Company 

of  America 610 

Liverpool  and  London  and  Globe  Insurance  Company 

V.  McFadden 604 

Louisiana  ex  rd.  Hubert,  Receiver,  v.  Mayor  and  Coun- 
cil of  New  Orleans   170 

Lowrey  v.  Territory  of  Hawaii 554 

Ludowici-Celadon  Company  (United  States  for  use  of), 

Mankint; 533 

Ludwig,  as  Secretary  of  State  of  the  State  of  Arkansas, 

V.  Chicago,  Rock  Island  <&  Pacific  Railway  Company    615 
Lumber  Company  (Cumberland),  Tunis  Lumber  Com- 
pany!;  603 

Lumber  Company  (Tunis)  v,  Cumberland  Lumber  Com- 
pany        603 

Lumber  Company  (Ward)  v,  Henderson-White  Manu- 
facturing Company 612 

Lumber  Company  (Yellow  Poplar)  v.  Chapman    .        .    601 

McBride,  Nowell  v 602 

McCurtain,  Fleming  v 56 

McFadden,  Liverpool  and  London  and  Globe  Insurance 

Company  v 604 

Macfarland  et  al.,  Commissioners  of  the  District  of 

Columbia,  Washington  Gas  light  Company  v.  .  614 
McGilvra  and  Bressler  v.  Ross,  State  Land  Commissioner 

of  the  State  of  Washington 70 

MacKenzie  v.  MacKenzie 582 


TABLE  OF  CONTENTS.  xxv 

Table  of  Cases  Reported. 

PAGB 

Macon  Grocery  Company  v.  Atlantic  Coast  line  Rail- 
road Company 501 

Majors  v,  Williamson 597 

Mankin  v.  United  States  for  the  use  of  Ludowici- 

Celadon  Company 533 

Marbles  v.  Creecy,  Chief  of  Police 63 

Mayor  and  Council  of  the  City  of  New  Orleans,  Louis- 
iana ex  rd.  Hubert  v 170 

Mechanical  Appliance  Company  v.  Castleman                .  437 

Melrose,  Dyer  v 594 

Merchants'  Coal  Company,  Fairmont  Coal  Company  v.  614 

Mescall,  United  States  v 26 

Metropolitan  Life  Insurance  Company  v.  Williamson    .  608 

Metropolitan  Securities  Company  v.  Ladd                     .  603 
Metropolitan  Street  Railway  Company,  Guaranty  Trust 

Company  V 587,  603 

Mexican  Central  Railway  Company,  Pyman  Steamship 

Company  v 597 

Mica  Insulator  Company,  Commercial  Mica  Company  v.  604 

Mills  V.  Johnson 590 

Mining  Company  (Butte  Cons.),  Barker  v.    .        .        .  584 

Mining  Company  (Ibex),  Van  Sice  v 607 

Mining  Company  (North  Carolina)  v,  Westfeldt    .        .  586 
Minneapolis  v.  Minneapolis  Street  Railway  Company    .  417 
Minneapolis  Street  Railway  Company,  CSty  of  Minne- 
apolis!;.            417 

Minnesota,  Cudahy  Packing  Company  v.        .        .        .  618 
Missouri  ex  rd.  Hines,  Scott  County  Macadamized  Road 

Company  v 336 

Modesto  Cobian  y  Muniz,  Abril  v 612 

Monmouth  Steamboat  Company,  Perth  Amboy  Dry 

Dock  Company  v 592  • 

Morse  v.  United  States 605 

Morton  Trust  Company  v.  Guaranty  Trust  Company  of 

New  York .  603 

Mullen  V.  Fomoff 615 


xxvi  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

Murfreesboro,  Nelson  v 617 

Mutual  life  Insurance  Company  v.  Griesa                     .  600 
Myers,  Receiver  of  Consolidated  Barb  Wire  Company, 

Henley  v 373 

National  Bank  (American,  of  Abilene),  Hanover  Na- 
tional Bank  t; .     110,  122 

National  Bank  (Collin  Co.),  Hughes  t?.         .        .        .  618 
National    Bank    (Farmers'),    iEtna    Indemnity   Com- 
pany!;         ...  601 

National  Bank  (First)  v,  C!ity  Council  of  Estherville      .  341 
National  Bank  (Hanover)  v,  Suddath    .        .        .110,  122 

Nelson  v.  CSty  of  Murfreesboro 617 

Newburjrport  v.  Citizens'  Savings  Bank                         .  598 
New  Liverpool  Salt  Company,  California  Development 

Company  V 603 

New  Liverpool  Salt  Company  v.  California  Develop- 
ment Company        606 

New  Mexico  ex  rel.  Coler,  Commissioners  of  Santa  Fe 

County  t?. 296 

New  Orleans,  Louisiana  ex  rd.  Hubert  v.        .        .        .  170 
New  York  Central  &  Hudson  River  Railroad  Company, 

Henry  DuBois  Sons  Company  v 596 

New  York,  New  Haven  &  Hartford  Railroad  Company 

V.  The  Steamship  Calderon 599 

Nolte,  United  States  Marshal,  Yordi  v.        .        .        .  227 

North  Carolina  Mining  Company  v.  Westfeldt            .  586 

North  Dakota  ex  rel.  Flaherty  v.  Hanson             .        .  515 
Novelty  Incandescent  Lamp  Company  v.  The  Edison 

Electric  light  Company 596 

Nowell  V.  McBride 602 

Obril  V.  Modesto  Cobian  y  Muniz 612 

Oceanica,  The,  Boland  v 599 

Oklahoma  ex  rel  Haskell,  Huston  v.      .        .        .        .  592 

Old  Nick  Williams  Company  v.  United  States        .        .  541 

Ottumwa,  International  Textbook  Company  v.    .        .  614 


TABLE  OF  CONTENTS.  xxvii 

Table  of  Cases  Reported. 

PAOK 

Peale,  Peacock  &  Kerr  v,  Graham 607 

Penn  Iron  Company  (United  States  to  use  of)  v.  William 

R.  Trigg  Company 611 

People  of  Porto  Rico  v.  Roman  Catholic  Apostolic 

Church 611 

People    of    Porto    Rico,    Roman    Catholic    Apostolic 

Church  t? 611 

Perth  Amboy  Dry  Dock  Company  v.  Monmouth  Steam- 
boat Company 592 

Pfaelzer  v.  Bach  Fur  Company 584 

Philippine  Islands,  Tiglao  v 410 

Pickens,  Atchison,  Topeka  &  Santa  Fe  Railway  Com- 
pany V 617 

Pierson  v.  Wabash  Railroad  Company    ....  598 
Pitcaim  Coal  Company  (United  States  ex  rel.),  Balti- 
more &  Ohio  Railroad  Company  v.        ,        ,        .  481 
Pitts  Livery  Company,  Woodward  Carriage  Company  v,  618 

Plamondon  v.  State  of  Kansas 615 

Porto  Rico  V.  Roman  Catholic  Apostolic  Church         .  611 

Porto  Rico,  Roman  Catholic  Apostolic  Church  v.        .  611 

Prame  v.  Ferrell 605 

Pyman  Steamship  Company  v.  Mexican  Central  Rail- 
way Company 597 

Railroad  Company  (Albany  &  Susquehanna),  Delaware 

&  Hudson  Company  v 601 

Railroad  Company  (Atl.  C.  L.)  v.  Geraty        .  .    616 

Railroad  Company  (Atl.  Coast  Line),  Macon  Grocery 

Company  V. 501 

Railroad  Company  (B.  &  0.),  Haynes  v.      .        .        .    608 

Railroad  Company  (B.  &  0.)  v.  Interstate  Commerce 

Commission 216 

Railroad  Company  (B.  &  0.)  v.  United  States  ex  rel, 

Pitcaim  Coal  Company 481 

Railroad  Company  (Chicago  &  Alton),  Interstate  Com- 
merce Conmiission  v 479 


xxviii  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

Railroad  Company   (111.  Cent.),   Interstate  Commerce 

Commission  v 452 

Railroad  Company  (111.  Cent.)  v,  Sheegog    .        .        .  308 
Railroad  Company  (N.  Y.  Cent.  &  H.  R.),  Henry  DuBois 

Sons  Company  v 596 

Railroad  Company  (New  York,  N.  H.  &  H.)  v.  The 

Steamship  Calderon 599 

Railroad  Company  (Union  Pac.)  v,  Harris  .  .  .  386 
Railroad  Company  (Union  Pac.),  Kuykendall  v,  .  .  602 
Railroad  Company  (Wabash),  Adelbert  College  v.  .  598 
Railroad  Company  (Wabash),  Picrson  v.  .  .  .  598 
Railway  Company  (A.,  T.  &  S.  F.)  v.  Pickens  .  .  617 
Railway  Company  (A.,  T.  &  S.  F.)  v,  Scwell  .  .  612 
Railway  Company  (Cent,  of  Ga.)  v.  Wright,  Comptroller- 
General  of  Georgia. 617 

Railway  Company   (Chicago  Great  West.),  Interstate 

Commerce  Commission  v 98 

Railway  Company  (C,  R.  I.  &  P.),  Ludwig  v.        .        .  615 
Railway  Company  (El  Paso  &  N.  E.)  v.  Gutierrez        .  87 
Railway  Company  (Met.  Street),  Guaranty  Trust  Com- 
pany v 587,  603 

Railway  Company    (Mex.   Cent.),   Pyman   Steamship 

Company  v 597 

Railway  Company  (Minneapolis  Street),  City  of  Minnea- 
polis V 417 

Railway  and  Electric  Company  (Washington),  Brill  v.  527 

Ramirez,  Elias  v, 398 

Rand,  McNally  &  Co.  v,  Kentucky        ....  582 

Reavis  v,  Fianza    ....                ...  16 

Receiver  of  American  Exchange  National  Bank  of  Syra- 
cuse, Kenyon  v 593 

Receiver  of  American  National  Bank  of  Abilene,  Han- 
over National  Bank  of  New  York  v.        .        .110,  122 
Receivers  of  the  Chicago  Great  Western  Railway  Com- 
pany, Interstate  Commerce  Commission  v,      .        .98 
Receiver  of  Consolidated  Barb  Wire  Company,  Henley  v.  373 


TABLE  OF  CONTENTS.  xxix 
Table  of  Cases  Reported. 

FAOK 

Reeves,  Richardson  v 619 

Remick  &  Company  v.  Stem 585 

Richardson  v.  Reeves 619 

Richmond  Coal  Company,  Conunercial  Union  Assurance 

Company!? .  609 

Rio  Grande  Dam  and  Irrigation  Company  v.  United 

States .266 

Road  Company  (Scott  County)  v.  Missouri  ex  rd.  Hines  336 

Roman  Catholic  Apostolic  Church,  People  of  Porto  Rico  v.  61 1 

Roman  Catholic  Apostolic  Church  v.  People  of  Porto  Rico  611 

Rosenbaum,  Snyder  v,           .        .     \  .        .        .        .  261 

Ross,  McGilvra  and  Bressler  v 70 

Royal  Arcanum  v.  Brenizer 612 

Rumford  Chemical  Works  v.  Hygienic  Chemical  Com- 
pany of  New  Jersey 156 

Rumford  Chemical  Works,  Hygienic  Chemical  Company 

of  New  York  v. 156 

San  Francisco,  Eddy  v 604 

Santa  F6  County  Conmaissioners  v.  Territory  of  New 

Mexico  ex  rd.  Coler       .        .        .        .        .        .  296 

Sargent,  United  States  v 618 

Savings  Bank  (Citizens')  City  of  Newburjrport  v.  .        .  598 
Scott  County  Macadamized  Road  Company  v.  State  of 
Missouri  ex  rd.  Hines,  Prosecuting  Attorney  of 

Cape  Girardeau  County 336 

Scoville,  Hadley  v 612 

Scully  V.  Squier 144 

Secretary  of  the  Interior,  .Irrigation  Land  &  Improve- 
ment Company  t? 613 

Secretary  of  State  of  Arkansas  v.  Chicago,  Rock  Island 

&  Pacific  Railway  Company 615 

Sewell,  Atchison,  Topeka  &  Santa  Fe  Railway  Com- 
pany V 612 

Sheegog,  Illinois  Central  Railroad  Company  v.    .        .  308 

Shipp,  United  States  v 580 


XXX  TABLE  OF.COxVTENTS. 

Table  of  Cases  Reported. 


PAOK 


Simmons  v.  The  Steamship  Jefferson.    See  Steamship 

Jefferson         .        .        .        .        .        .        .        .  130 

Simon  &  Company,  United  States  v 610 

Smith,  Sweeney  v.       .        .        .        .        .        .        .  600 

Snyder  v.  Rosenbawn 261 

Southern   Pacific   Company   v.   Interstate   Commerce 

Commission 226 

Spencer  v.  Watkins        .        .        .        .        .        .        .  605 

Squier,  Scully  v 144 

Stanclift  v.  Fox 619 

State  Land  Commissioner  of  Washington,  McGilvra  and 

Bresslerv 70 

State  of  Kansas,  Plamondon  v 615 

State  of  Iowa,  Thomas  v.     .        .        .        .        .        .  591 

State  (Louisiana)  ex  rd.  Hubert  v.  Mayor  and  Council 

of  New  Orleans 170 

State  of  Minnesota,  Cudahy  Packing  Company  v,        .  618 
State  of  Missouri  ex  rd.  IBnes,  Prosecuting  Attorney  of 
Cape  Girardeau  County,  Scott  Coimty  Macadamized 

Road  Company  V 336 

State  of  North  Dakota  ex  rd.  Flaherty  v.  Hanson, 

Sheriff  of  Grand  Forks  County      .        .        .        .  515 

State  of  Oklahoma  ex  rd.  Haskell,  Huston  v.    .        .  592 

State  of  Washington,  Sylvester  v 80 

State  of  West  Virginia,  King  v 616 

Steamboat  Company  (Monmouth),  Perth  Amboy  Dry 

Dock  Company  t; 592 

Steamship  Baralong,  Androvette  v 600 

Steamship  Bayamo,  Jacksonville  Towing  A  Wrecking 

Company  v 606 

Steamship  Calderon,  New  York,  New  Haven  &  Hart- 
ford Railroad  Company  v 599 

Steamship  Company  (Psmaan)  v.  Mexican  Central  Rail- 
way Company 597 

Steamship  Folmina  v.  Jahn    .        .        .        .        ,        .  608 

Steamship  Jefferson 130 


TABLE  OF  CONTENTS.  xxxi 

Table  of  Cases  Reported. 


PAGK 


Steamship  JefiFerson,  The,  Simmons  v.    See  Steamship 

Jefferson 130 

Steamship  Wildenfels,  American  Manufacturing  Ck)m- 

pany  v 597 

Steam  Tug  Eugene  F.  Moran,  Henry  DuBois  Sons  Com- 
pany V 596 

Steam  Vessel  Oceanica,  Boland  V 599 

Stern,  Jerome  H.  Remick  &  Company  v.    .        .        .  585 

Stevenson,  United  States  v 190,  200 

Steward  v.  American  Lava  Company     .        .        .        .  161 
Stickney  and  others.  Receivers  of  the  Chicago  Great 
Western  Railway  Company,  Interstate  Commerce 

Commission  v. .98 

Street  Railway  Company  (Met.),  Guaranty  Trust  Com- 
pany of  New  York  u 587,  603 

Strong  V.  Gassert 583 

Suddath,    Receiver   of   American    National    Bank   of 
Abilene,  Hanover  National  Bank  of  New  York  v. 

110,  122 

Supreme  Council  of  the  Royal  Arcanum  v.  Brenizer        .  612 

Sutton,  United  States  v.   • 291 

Sweeney  V.  Smith  .-.-..        .        .        .        .  600 

Sylvester  r.  The  State- of  Washington    .        .        .        •  80 

«  •  a  u  . 

Terminal  Railroad  Association  of  St.  Louis,  United 

States  V.       '.•.-..        .        .        .        .  595 

Territory  of  Hawaii,  Lowrey  v 554 

Territory  of  New  Mexico  ex  rel.  Coler,  Commissioners 

of  Santa  Pe  €ounty  v. 296 

Thomas  v.  De  Winter-   .     « 609 

Thomas  v.  Iowa  •   .        . 591 

Tiglao  V.  Insular  Government  of  the  Philippine  Islands  410 

Tracy,  Berger  v.     , 594 

Trigg  Company,  United  States  to  use  of  Penn  Iron  Com- 
pany!;.   .        ......        .        .        .  611 

Trinidad  Shipping  &  Trading  Company,  Halligan  v.      .  614 


xxxii  TABLE  OF  CONTENTS. 

Table  of  Caaes  Reported. 


PAQB 


Trust  Company  (American)  v.  W.  &  A.  Fletcher  Com- 
pany         600 

Trust  Company  (Guaranty)  v.  Metropolitan  Street  Rail- 
way Company 587,  603 

Trust  Company  (Guaranty),  Morton  Trust  Company  v.  603 

Trust  Company  (International),  Crook  v.    .                .  613 

Trust  Company  (Morton)  v.  Guaranty  Trust  Company 

of  New  York 603 

Trust  Company    (Union),   American   Wood   Working 

Machinery  Company  v 596 

Tunis  Lumber  Company  v.  Cumberland  Lumber  Company  603 

Union  Pacific  Railroad  Company  v.  Harris        .        .  386 

Union  Pacific  Railroad  Company,  Kuykendall  v.  .  602 
Union  Supply  Company,  United  States  v.  .  .  .50 
Union    Trust    Company,    American    Wood    Working 

Machinery  Company  v 596 

United  States  v.  American  Bonding  Company  of  Balti- 
more         616 

United  States,  Anderson  v 618 

United  States  v.  Axman         ..,.-.  617 

United  States  v.  Baruch 610 

United  States,  Cardwell  v. 599 

United  States  v.  Celestine 278 

United  States  v.  Corbett 233 

United  States,  Davis  v. 607 

United  States,  Dufaur  v 615 

United  States  v.  Freeman      ......  602 

United  States,  Kerrch  v 602 

United  States,  Komada  &  Co.  v 392 

United  States  v,  Mescall 26 

United  States,  Morse  v. 605 

United  States,  Old  Nick  Williams  Company  v.       .        .541 
United 'states,  Rio  Grande  Dam  and  Irrigation  Com- 
pany t; 266 

United  States  v.  Sargent 618 


TABLE  OF  CONTENTS.  xxxiii 

Table  of  Cases  Reported. 


PAGE 


United  States  t;.  Shipp 580 

United  States  v.  Simon  &  Company       .        .        .        .610 

United  States  v.  Stevenson 190,  200 

United  States  v.  Sutton 291 

United  States  v.  Terminal  Railroad  Association  of  St. 

Louis 595 

United  States  v.  Union  Supply  Company       ...  50 

United  States,  Walsh  v. 609 

United  States  for  the  use  of  Ludowici-Celadon  Com- 
pany, Mankin  v 533 

United  States  to  use  of  Penn  Iron  Company  v,  William 

R.  Trigg  Company 611 

United  States  ex  rel.  Pitcaim  Coal  Company,  Baltimore 

&  Ohio  Railroad  Company  v 481 

United  States  Consolidated  Seeded  Raisin  Company, 

Ex  parte 591 

United  States  Marshal  for  the  Northern  District  of 

Illinois,  Cox  v 619 

Van  Sice  v.  Ibex  Mining  Company        ....  607 

Virginia^arolina  Chemical  Company  v.  Kirven     .        .  252 

Virginia  Passenger  &  Power  Company  v.  Lane  Bros.  Co.  610 

Wabash  Railroad  Company,  Adelbert  College  v.    .        .  598 

Wabash  Railroad  Company,  Pierson  v 598 

W.  &  A.  Fletcher  Company,  American  Trust  Com- 
pany V 600 

Wagg  V.  Herbert 546 

Wagner   Electric   Manufacturing   Company,   Westing- 
house  Electric  &  Manufacturing  Company  v.        .  608 

Walsh  V.  United  States 609 

I              Ward  Lumber  Company  v.  Henderson-White  Manu- 
facturing Company 612 

I              Washington,  Sylvester  v 80 

Washington  Gas  Light  Company  v,  Macfarland  et  al,, 

Commissioners  of  the  District  of  Columbia    .        .614 

Washington  Railway  and  Electric  Company,  Brill  v.     .  527 


xxxiv  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

9Aam 

Waterman  v.  The  Caiial-Louisiana  Bank  and  Trust 

Company,  Executor 33 

Watkins,  Spencer  v 605 

Watson  V,  Greenwood 599 

Weber  v.  Grand  Lodge  of  Kentucky,  Free  and  Accepted 

Masons 60^ 

Western  Pocahontas  Corporation,  Acord  v.    .        .        .  607 

Westfeldt,  North  Carolina  Mining  Company  v.    .        .  580 
Westinghouse  Electric  &  Manufacturing  Company  v. 

Wagner  Electric  Manufacturing  Company    .        .  608 
Westrumite  Company  of  America,  Commissioners  of 

lincoln  Park  v 610 

West  Virginia,  King  v 616 

Wildenfels,  The,  American  Manufacturing  Company  v.  597 
William  R.  Trigg  Company,  United  States  v.        .        .611 

Williamson,  Majors  v 597 

Williamson,  Metropolitan  Life  Insurance  Company  v.    .  608 

Woodward  Carriage  Company  v,  Pitts  Livery  Company  618 
Wright,    Comptroller-General   of   Georgia,   Central   of 

Georgia  Railway  Company  v 617 

Yellow  Poplar  Lumber  Company  v.  Chapman        .        .  601 

Yordi  V.  Nolte,  United  States  Marshal        •        .        .  227 


Proceedings  on  the  Death  of  Mr.  Justice  Peckham        .        v 
Rules  of  Court.    Amendment  of  §  7  of  Rule  24    .        .     xiv 


TABLE  OF  CASES 


CITED  IN  OPINIONS. 


FAGB 

Adams  v.  Woods,  2  Cranch, 
336  198 

Alabama  Great  Southern  Ry. 
V.  Thompson,  200  U.  S.  206 

251,  316,  325 

Aldrich  v.  Steen,  100  N.  W. 
Rep.  311  5 

AHcia,  The,  7  Wall.  571  224 

AUen  V.  Riley,  203  U.  S.  347    526 

Althea  Ck)lemaQ  v.  Whitney, 
62  Vt.  123  577 

Altoona  Quicksilver  Mining 
Co.  V.  Integral  Quicksilver 
Mming  Co.,  114  Cal.  100        24 

American  Lava  Co.  v.  Stew- 
ard, 155  Fed.  Rep.  731, 
740;5.  C,  84C.  C.A.  157, 
166  161 

American  Tobacco  Co.  v. 
Werckmeister,  207  U.  S. 
2S4  188 

Ames  V.  Lake  Superior  & 
Miss.  R.  R.  Co.,  21  Minn. 
241  430 

Anderson  v.  Carkins,  135 
U.  S.  483  85 

Appleyard  v.  Massachusetts, 
203U.S.222  68 

Arbuckle  v.  Blackburn,  191 
U.  S.  405  590 

Arkansas  v.  Coal  Co.,  183 
U.  S.  185  514 

Arkansas  Southern  R.  R.  Co. 
V.  German  Nat.  Bank,  207 
U.  S.  270  583 

Armijo  v.  Armijo,  181  U.  S. 
558  307 

Ashby  V.  Hall,  119  U.  S.  526  154 

Atchison,  Topeka  &  Santa 
Fe  Ry.  C)o.  v.  Sowers,  213 
U.  S.  55  90,  92 


PAOX 

Atlantic  Trust  Co.  v.  Chap- 
man, 208  U.  S.  360  587 

Bachtel  v.  Wilson,  204  U.  S. 

36  585 

Bacon  v.  Texas,  163  U.  S.  207 

175,583 
Bagley  v.  General  Fire  Ex- 

tmguisher  Co.,  212  U.  S. 

477  15 

Baltimore  &  Ohio  R.  R.  Co. 

V.  Baugh,  149  U.  S.  368        359 
Baltimore  &  Ohio  R.  R.  Co. 

V.  Interstate  Com.  Comm., 

215  U.  S.  216  227,  595 

Baltimore  &  Ohio  R.  R.  Co. 

V.  Pitcaim  Coal  Co.,  215 

U.  S.  481  511 

Bank  of  Montreal  v.  White, 

154  U.  S.  660  117 

Barber  v,  Pittsburg  &c.  Ry., 

166  U.  S.  83  359 

Barker  v.  Harvey,  181  U.  S. 

481  388 

Barney  v.  Baltimore,  6  Wall. 

280  48 

Barney  v.  Keokuk,  94  U.  S. 

324  79 

Bates  V.  Qark,  95  U.  S.  204     285 
Beale's  Heirs  v,  Johnson,  45 

Tex.  av.  App.  119;  iS.  C, 

99  S.  W.  Rep.  1045  590 

Reals  V.  Cone,  188  U.  S.  184    585 
Belk  V.  Meagher,  104  U.  S. 

279  24 

Benson    v,    McMahon,    127 

U.  S.  457  409 

Berger  v.  Tracy,  135  Iowa, 

597  595 

Biebinger     v.      Continental 

Bank,  99  U.  S.  143  116 

(xxxv) 


XXXVl 


TABLE  OF  CASES  CITED. 


PAOB 

Bien  v.  Robinson,  208  U.  S. 

423  587 

Blackwall,  The,  10  Wall.  1 

139  140  141 
Blair  V.  Chicago,  201  U.  S.  400  431 
Bobbs-MerrilT  Co.  v,  Straus, 

210  U.  S.  339  188 

Bolles   V.    Outing   Co.,    175 

U.  S.  262  243 

Bong  V.  Campbell  Art  Co., 

214  U.  S.  236  188 

Boone  v.  Chiles,  10  Pet.  177  9 
Boyle  V.  Zacharie,  6  Pet.  635  364 
Brazee  v.  Schofield,  124  U.  S. 

495  86 

Brill  V.  Peckham  Mfg.  Co., 

135  Fed.  Rep.  784;  S,  C, 

68  C.  C.  A.  486  528 

Brill  V.  Washington  Ry.  & 

El.  Co.,  30  App.  D.  C.  255    531 
Brine  v.  Insurance  Co.,   96 

U.  S.  627     9,  367,  368,  369,  372 
Brittin  v.  City  of  New  Or- 
leans, 106  La.  469  175 
Brooks  V,  Norris,  1 1  How.  204  543 
Brown  v.  Maryland,  12  Wheat. 

419  524 

Bryant  v.  United  States,  167 

U.  S.  104  407 

Bucher  v.  Cheshire  Railroad 

Co.,  125  U.  S.  555  359 

Burgess    v.    Seligman,     107 

U.  S.  20  357,  360,  366 

Burlington,  Cedar  Rapids  & 

Northern    R.    R.    Co.    v. 

Dunn,  122  U.  S.  513  325 

Burnley    v.    Stevenson,    24 

Ohio  St.  474  12 

Butte    aty    Water    Co.    v. 

Baker,  196U.  S.  119  585 

Bybee  v.  Oregon  &  California 

R.  R.  Co.,  139  U.  S.  663       389 
Byers  v,  McAuley,  149  U.  S. 

608  43,  44,  45 

Caliga  V,  Inter  Ocean  News- 
paper Co.,  157  Fed.  Rep. 

186  187 

Camp  V.  Dixon,  112  Ga.  872  334 
Carbon   Block   Coal   Co.    v. 

Murphy,  101  Ind.  115  576 

Carey  v.  Houston  &  Texas 

Central  Ry.  Co.,  150  U.  S. 

170  587 


PAOK 

Carino    v.    Insular   Govern- 
ment, 212  U.  S.  449        23,  414 
Carpenter    v.    Strange,    141 

U.  S.  87  9 

Carroll  County  v.  Smith,  111 

U.  S.  556  366 

Carson  v.  Dunham,  121  U.  S. 

421  325 

Carson  v.  Hyatt,  118  U.  S. 

279  324 

Castillo  V.   McConnioo,    168 

U.  S.  674  595 

Central  Land  Co.  v,  Laidley, 

159  U.  S.  103  583 

Chanute  v.  Trader,  132  U.  S. 

210  583 

Cherokee  Nation  v.   Hitch- 
cock, 187  U.  S.  294  61 
Chesapeake  &  Ohio  Ry.  Co. 

V.  Dixon,   179  U.  S.   131 

251,  319,  325 
Chesapeake  &  Ohio  Ry.  Co. 

v.  McCabe,  213  U.  S.  207      316 
Chicago,  Burlington  &  Quincy 

Ry.  Co.  V.  WiUiams,  205 

U.  S.  444  221 

Chicago  City  t;.  Robbins,  2 

Black,  418  361 

Chicago  &  N.  W.  Ry.  Co.  v. 

Chicago,  164  U.  S.  454         257 
Choctaw  Nation  v.   United 

States,  119  U.S.  1  59 

Chouteau  v.  Gibson,  HI  U.  S. 

200  130 

Cincinnati,   New  Orleans  & 

Texas  Pacific  Ry.  Co.  v. 

Bohon,  200  U.  S.  221    316 

325,  326 
Cincinnati  Street  Ry.  Co.  v, 

Snell,  193  U.  S.  30  590 

City  of  Newcastle,  The,   7 

Asp.  Mar.  Cas.  (N.  S.)  546  141 
Cizek  V.  azek,  69  Neb.  797  5 

Clarita  and  Clara,  The,  23 

Wall.  1  141 

Clarke  v.  McDade,  165  U.  S. 

168  257 

Clement  v.  United  States,  149 

Fed.  Rep.  305  230 

Cleveland  Terminal  &  Valley 

R.    R.    Co.    v.    Cleveland 

Steamship  Co.,  208  U.  S. 

316  138 


TABLE  OF  CASES  CITED 


xxxvu 


PAGE 


Qune  V.  United  States,  159 
U.  S.  590  203 

Cochran  v.  United  States,  157 
U.  S.  286        238, 239,  240,  243 

Cofield  V,  McQelland,  16 
Wall.  331  155 

Commisaioners  &c.  v.  Ban- 
croft, 203  U.  S.  112  359 

Commonwealth  v.  Ginn  & 
Co.,  Ill  Ky.  110  583 

Commonwealth  of  Kentucky 
V.  Dennison,  24  How.  66      199 

Commonwealth  v,  Pulaski 
County  Amcultural  &  M. 
Asso.,  92  Ky.  197  55 

Conboy  v.  Bank,  203  U.  S. 
141  543, 544 

Conley  t;.  Mathieson  Alkali 
Works,  190  U.  S.  406  442 

Cope  V.  Vallette  Dry  Dock 
Co.,  119U.  S.  625         138,  142 

Corbett  v.  Craven,  193  Mass. 
30  127 

Corbett  v.  Craven,  196  Mass. 
319  128 

Corbett  v.  Nutt,  10  Wall.  464      9 

Corkran  Oil  Co.  v.  Amaudet, 
199  U.  S.  182  583,  592 

Cornell  V,  Green,  163  U.  S.  75  587 

Couture  v.  United  States,  207 
U.  S.  581  291,  296 

Covington  v.  First  Nat.  Bank, 
198  U.  S.  100  130 

Cox  V.  Texas,  202  U.  S.  446  590 

Credit  Co.  v.  Arkansas  Cen- 
tral Ry.,  128  U.  S.  258  543,  544 

Crehore  v.  Ohio  &  Miss.  Ry. 
Co.,  131  U.  S.  240        316,  325 

Cresqent  City  &c.  Co.  v. 
Butchers'  Union  &c.  Co., 
120  U.  S.  141  257 

Crier  v.  Innes,  160  U.  S.  103    391 

Cromwell  v.  Sac  County,  94 
U.  S.  351  267,  258 

Crow  Dog,  Ex  parte,  109  U.  S. 
556  285 

Davis  V.  Ehnira  Savings 
Bank,  161  U.  S.  275  524 

De  la  Rama  t;.  De  la  Rama, 
201  U.  S.  303  22 

De  La  Vergne  Refrigerating 
Machine  Co.  v.  Feather- 
stone,  147  U.  S.  209  168 


PAGE 

Delmar  Jockey  Club  v.  Mis- 
souri, 210  U.  S.  324  587 
Deposit  Bank  v.  Frankfort, 

191  U.  S.  499  257 

Detroit  v.  Detroit  Citizens' 

Street  Ry.  Co.,  184  U.  S. 

368  430,  434,  436 

De  Vaughn  v.  Hutchinson, 

165  U.  S.  566  367,  369 

Dick  V,  United  States,  208 

U.  S.  340  287 

Dollar     Savings     Bank     t;. 

United   States,    19   WaU. 

227  197 

Donovan  v.  Wells,  Fargo  & 

Co.,  169  Fed.  Rep.  363  329 
Douglass  V.  Rke  County,  101 

U.  S.  677  371 

Draper  t;.  United  States,  164 

XL  S.  240  295,  296 

Dublin  V.  Chaboum,  16  Mass. 

433  214 

Dull  t;.  Blackman,  169  U.  S. 

243  11 

Duluth    V.    Duluth    Gas    & 

Water  Co.,  45  Minn.  210  428 
Duluth  &  S.  Bridge  Co.  v. 

The  Troy,  208  U.  S.  321  138 
Dyer  t;.  Melrose,  197  Mass.  99  594 
Ec^^1eton  Manuf .  Co.  v.  West, 

Bradley  &  Carey  Manuf. 

Co.,  Ill  U.  S.  490  168 

East  Alabama  Ry.  Co.  v.  Doe, 

114U.  S.  340  359 

East  Cent.   Eureka  Mining 

Co.  V.  Central  Eureka  Co., 

204  U.  S.  266      86,  367, 

368,  369,  372 
Eastern  Monarch,  Lush.  81  140 
Eells  V,  Ross,  12  C.  C.  A.  205  287 
Egita,  In  re,  63  Fed.  Rep.  972  409 
Electric    Co.    V.    Dow,    166 

U.  S.  489  583 

El   Paso  &   N.   E.   Ry.   v. 

Gutierrez,  111  S.  W.  Rep. 

159;  5.  C,  117S.  W.  Rep. 

426  91 

Empire  State-Idaho  Mining 

&  D.  Co.  V,  Hanley,  205 

U.  S.  225  587 

Employers'  Liability  Cases, 

207  U.  S.  463    91,  93,  94, 

95,  96,  97 


XXXVIIl 


TABLE  OF  CASES  CITED. 


FAOB 

ICiigllNh  V.  Arisona,  214  U.  S. 

m)  305, 307 

lOuMtiH  V.  BoUes,  150  U.  S.  361  583 
lOvAUH  V.  United  States,  153 

IJ.  H.  684  243 

Mvtirott  V.  Everett,  48  App. 

Div.  476;  S.  C,  75  App. 

1)1  V.  369;  5.  C.  89  App. 

1)1  V.  619;  5.  C,  180  N.Y. 

462  207 

Kiiirfleld  v.  Gallatin  County, 

100  U.  S.  47  371 

Fttll  V,  Fall,  106  N.  W.  Rep. 

4l2;iS.  C,  75Neb.  104  4,6 
I'^arrar  v,  Churchill,  135  U.  S. 

609  543, 544 

I'ttrrell  v.  O'Brien,  199  U.  S. 

89  44, 587 

Fauntleroy  v.  Lum,  210  U.  S. 

230  10,  15 

jnnn  V,  Brown,  142  U.  S.  56  593 
First  Nat.  Bank  v.  Esther- 

ville,  136  Iowa,  203  345 

Folsom   V.    Ninety-six,    159 

U.  S.  611  359 

Forgay  v,  Conrad,  6  How. 

201  224 

Foxcroft  V.  Mallett,  4  How. 

353  363, 364 

French,  Trustee,  v.  Hay,  22 

Wall.  250  8 

Fritzlen  t;.  Boatmen's  Bank, 

212  U.  S.  364  251 

Garfield  v.  Goldsby,  211  U.  S. 

249  63 

Gatewood  v.  North  Carolina, 

203  U.  S.  531  585 

Gelpcke  v.  Dubuque,  1  Wall. 

175  371, 372 

Genessee  Chief  v.  Fitzhugh, 

12  How.  443  78 

Gibbons  v.  Ogden,  9  Wheat. 

1  474, 524 

Gillcock  V,  The  People,  171 

111.  307  32 

Globe     Newspaper    Co.    v. 

Walker,  210  U.  S.  356  138, 197 
Goldey  v.  The  Morning  News, 

166  U.  S.  518  442 

Goodrich  V.  Ferris,  214  U.  8. 

71  687 

Gormley  v.  Clark,  134  U.  8. 

338  359 


PAOK 


Gray  Lumber  Co.  v.  Gaskin, 

122  Ga.  342  334 

Great  Southern  Hotel  Co.  v. 

Jones,  193  U.  S.  532  366 

Greeley  v.  Lowe,  155  U.  S.  58  587 
Green  v.  C,  B.  &  Q.  Ry.  Co., 

205  U.  S.  530  442 

Green  v.  Knife  FaUs  Boom 

Corp.,  35  Minn.  155  429 

Green  v.  Liter,  8  Cranch,  229  334 
Green's  Ad.  v.  Creighton,  23 

How.  90  43 

Green  County  v,  Conness,  109 

U.  S.  104  371 

Greenwood  Drug  Co.  v,  Bro- 

monia  Co.,  81  S.  Car.  516    260 
Griflfin  V,  Coal  Co.,  59  W.  Va. 

480  355  356 

Griffin  V.  Sketoe,  30  Ga.  300  '  335 
Grin  V,  Shine,  187  U.  S.  181     232 
Guaranty  Trust  Co.  v.  Metro- 
politan Street  Ry.  Co.,  166 

Fed.  Rep.  569;  168  Fed. 

Rep.  937;  170  Fed.  Rep. 

335,  625,  626;  171  Fed. 

Rep.  1014,  1015,  1019    588 
Guaranty  Trust  Co.  v.  Second 

Avenue  Ry.  Co.,  171  Fed. 

Rep.  1020  588 

Haffner    v.    Dobrinski,     17 

Okla.  438  446 

Haire  v.  Rice,  204  U.  S.  291 

585,592 
Hammond   Packing   Co.    v, 

Arkansas,  212  U.  S.  322       590 
Hanover  Nat.  Bank  v.  Sud- 

dath,  153  Fed.  Rep.  1021 

112,  124 
Hardin  v,  Boyd,  113  U.  S. 

756  276 

Harding  v,  Illmois,  196  U.  S. 

78  257, 590 

Hart  V,  Sansom,  110  U.  S. 

151  10 

Hastings  &c.  R.  R.  Co.  v. 

Whitney,  132  U.  S.  357        389 
Hawke  v.  E.  Hulton  &  Co., 

Ltd.  (1909),  2  K.  B.  93  55 

Hayes  v.  Pratt,  147  U.  S.  557    43 
Hayes  v.  United  States,  170 

tJ.  S.  637  415,  417 

HeflF,  Matter  of,  197  U.  S.  488 

288,290 


TABLE  OF  CASES  CITED. 


XXXIX 


PAGE 

Henley  v.  Myers,  76  Kan.  736  379 

Hennessy  v,  Woolworth,  128 
U.  S.  438  450 

Hepner  v.  United  States,  213 
U.  S.  103  199 

Hibemia  Savings  Society  v, 
San  Francisco,  200  U.  S. 
310  594 

Hill  V.  American  Surety  Co., 
200  U.  S.  197        537,  539,  540 

Holland  v.  Challen,  110  U.  S. 
15  335 

Houseman  v.  The  Cargo  of 
the  Schooner  North  Caro- 
lina, 15  Pet.  40  137 

Hubbard  v.  Hubbard,  97 
Mass.  188  576 

Hubert  v.  City  of  New  Or- 
leans, 116  La.  507  173 

Hussey  17.  Smith,  99  U.  S.  20    155 

Hyatt  V.  Corkran,  188  U.  S. 
691  68 

Hyde  v.  Southern  Ry.  Co.,  31 
App.  D.  C.  466  98 

Hyde  v.  Stone,  20  How.  170      43 

Illinois  Central  R.  R.  v.  Mc- 
Kendree,  203  U.  S.  514  97 

Illinois  C^tral  Ry.  Co.  v, 
Sheegog's  Admr.,  126  Ky. 
252  315,  322 

Imperial  Colliery  Co.  v.  Ches- 
apeake &  O.  Ky.  Co.,  171 
Fed.  Rep.  589  507 

Ingersoll  v.  Coram,  211  U.  S. 
335  43,46 

Interstate  Com.  Comm.  v. 
C,  B.  &  Q.  R.  R.  Co.,  186 
U.  S.  320  104,  105,  108 

Interstate  Com.  Comm.  v. 
Illinois  Central  R.  R.  Co., 
215  U.  S.  452    480,  483, 

494,  495,  496 

Iowa  V.  Rood,  187  U.  S.  87      585 

Iowa  Central  Ry.  Co.  v.  Iowa, 
160  U.  S.  389  585 

Jackson  v.  Chew,  12  Wheat. 
153  359 

Jefferson,  The,  158  Fed.  Rep. 
358  136,  137,  138 

Jenkins  v.  International  Bank 
of  Chicago,  127  U.  S.  484     275 

Jewell  V.  Knight,  123  U.  S* 
426  221 


PA.OB 

Jewett  Bros,  v,  C,  M.  &  St. 

P.  Ry.  Co.,  156  Fed.  Rep. 

160  507 

Joy  V,  St.  Louis,  201  U.  S.  332 

79,  514 
Julian  V.  Central  Trust  Co., 

193  U.  S.  93  359 

Julian  V,  Kansas  City  Star 

Co.,  209  Mo.  35  590 

Kansas  v.  Colorado,  206  U.  S. 

46  79 

Kansas    City    Railroad    v. 

Daughtry,  138  U.  S.  298      325 
Kansas  City  Suburban  Belt 

Ry.  Co.  V.  Herman,   187 

U.  S.  63  251 

Kansas  Indians,  The,  5  Wall. 

737  287 

Keasbey  &  Mattison  Co.,  In 

re,  160  U.  S.  221  508,  512 

Kennedy   v.    Hazel  ton,    128 

U.  S.  667  168 

Kenyon  v.  Fowler,  155  Fed. 

Rep.  107;iS.C.,83C.C.A. 

567  593 

Kessler  v.  Eldred,  206  U.  S. 

285  528 

Keyser  v.  Hitz,  133  U.  S.  138  593 
King  V.  Stuart,  84  Fed.  Rep. 

546  334 

Kirchberger     v,     American 

Acetylene  Burner  Co.,  128 

Fed.  Rep.  599;  S.  C,  64 

C.  C.  A.  107  161 

Kirven  v.   Virginia-Carolina 

Chemical  Co.,  77  S.  Car. 

493  255 

Knowlton    v.    Moore,     178 

U.  S.  41  524 

Knox  County  v,  Harshman, 

133  U.  S.  152  443 

Kuhn  V.  Fairmont  Coal  Co., 

152  Fed.  Rep.  1013  354 

Landes  v.  Brant,  10  How.  348  87 
Lane  t;.  Vick,  3  How.  464  362 
Langhton  v.  Atkins,  1  Pick. 

535  214 

Lathrop,  Shea  &  Henwood 

Co.  V,  Interior  Construc- 
tion &  Improvement  Co., 

135  Fed.  Rep.  619;  5.  C, 

143  Fed.  Rep.  687;  S.  C, 

150  Fed.  Rep.  666        248,  249 


xl 


TABLE  OF  CASES  CITED. 


Lawrence  v.  Nelson,  143  U.  S. 

215  43 

Lawson    v.    United    States 

Mining  Co.,  207  U.  S.  1  334 
Lees  V,  United  States,  150 

U.  S.  476  198 

Lennon,  In  re,  150  U.  S.  393  587 
License  Cases,  5  How.  504  524 
Litchfield  v.  Goodnow,   123 

U.  S.  549  160 

Lockard  t;.  St.  Louis  &  S.  F. 

R.  Co.,  167  Fed.  Rep.  675  329 
Loeber    v,    Schroeder,     149 

U.  S.  580  590 

Logan  Coal  Co.  v.  Pennsyl- 
vania R.  R.  Co.,  154  Fed. 

Rep.  497  461,  474 

Lone  Wolf  v.  Hitchcock,  187 

U.  S.  553  61 

Los  Angeles  v.  Los  Angeles 

City  Water  Co.,  177  U.  S. 

558  431,  435 

Louisiana  v.   New   Orleans, 

102  U.  S.  203  178 

Louisville  &  Nashville  R.  R. 

Co.  V.  Mottley,  211  U.  S. 

149  504 

Louisville  &  Nashville  R.  R. 

Co.  V.  Wangelin,  132  U.  S. 

599  319 

liouisville  Trust  Co.  v,  Cin- 
cinnati, 76  Fed.  Rep.  296  364 
Louisville  Trust  Co.  v.  Co- 

mingor,  184  U.  S.  18  137 

Louisville  Trust  Co.  v.  Knott, 

191  U.  S.  225  587 

Lowrey  v.  Hawaii,  19  Hawaii, 

123  560  et  aeq. 

Lowrey  v.  Hawaii,  206  U.  S. 

206  559,  564 

Luther  t;.  Borden,  9  How.  1  592 
McAlister  v.   Chesapeake  & 

Ohio  Ry.   Co.,  .  157   Fed. 

Rep.  740  329 

McCabe  v.  Ma3n3VLlle  &  Big 

Sandy  R.  R.  Co.,  112  Ky. 

861  317 

McCorquodale  v,  Texas,  211 

U.  S.  432  583,  590 

M'Elmoyle  v.  Cohen,  13  Pet. 

312  12 

Macfadden  v.  United  States, 

213  U.  S.  288  587,  589 


FAOK 

McGilvra  v.  Ross,  161  Fed. 

Rep.  398  75 

McGilvra  v.  Ross,  161  Fed. 

Rep.  604  76 

McGuire  v.  Great  Northern 

Ry.  Co.,    153    Fed.  Rep. 

434  329 

Mcintosh    V.    Aubrey,    185 

U.  S.  122  594 

McKay  v,  Kalyton,  204  U.  S. 

458  296 

McLish  v.  Roff,  141  U.  S.  661 

224,  584,  585 
McNichols  V.  Pease,  207  U.  S. 

100  68 

Macon  Grocery  Co.  v.  Atlan- 
tic C.  L.  R.  Co.,  163  Fed. 

Rep.  738  503 

McConnick  Harvesting  Ma^ 

chine  Co.  v.  Walthers,  134 

U.  S.  41  512 

McCowan  v,  Maclay,  16  Mont. 

234  24 

M'Culloch    V.    Maryland,    4 

Wheat.  316  524 

McCuUough  V,  Virginia,  172 

U.  S.  102  175 

McGuire  v.  Great  Northern 

Ry.  Co.,  153  Fed.  Rep.  434  329 
McPhun,  In  re,  30  Fed.  Rep. 

57  409 

Majestic  Coal  &  Coke  Co.  v, 

Illinois  Central  R.  R.  Co., 

162  Fed.  Rep.  810        461,  496 
Marine  Ins.  Co.  v.  Hodgson,  6 

Cranch,  206  275 

Massie  v.  Watts,  6  Cranch, 

148  9 

Matteson  v.  Dent,  176  U.  S. 

521  593 

Matthews  v.  Kimball,  70  Ark. 

451  32 

Memphis  v.  United  States,  97 

U.  S.  293  178 

Memphis  Cotton  Oil  Co.  v. 

Illinois  Central  R.  R.  Co., 

164  Fed.  Rep.  290  507 

Merchants'  Heat  &  Light  Co. 

V.  Clow  &  Sons,  204  U.  S. 

286  257,  258 

Metropolitan    Railway    Re- 
ceivership, In  re,  208  U.  S. 

90  587 


TABLE  OF  CASES  CITED. 


xli 


FAOK 

Mexican   Cent.   Ry.   Co.   v, 

Pinkney,  149  U.  S.  194         443 
Milkman    v,    Ordway,    106 

Mass.  232  335 

Miller  t;.  Cornwall  R.  R.  Co., 

168  U.  S.  131  257 

Miller  v.  Eagle  Manuf.  Co., 

151  U.  S.  186  189 

MiUer  V.  Sheny,  2  Wall.  237        9 
Minnesota  v.  Hitchcock,  185 

U.  S.  373  388 

Missouri,  K.  &  T.  R.  Co.  v, 

Haber,  169  U.  S.  613  524 

Mobile  V.  Watson,  116  U.  S. 

289  178 

Moore,  In  re,  209  U.  S.  490 

508,587 
Moran  v.  Horsky,  178  U.  S. 

205  585 

Morton  Trust  Co.  t;.  Metro- 
politan Street  Ry.  Co.,  170 

Fed.  Rep.  336  588 

Munsey  v.  Clough,  196  U.  S. 

364  68 

Murphy  v.  Utter,  186  U.  S. 

95  303 

Mussina  v.  Cavazos,  6  Wall. 

355  545 

Mutual  Life  Ins.  Co.  v.  Mc- 

Grew,  188  U.  S.  291  589 

Nash  V.  Lowry,  37  Minn.  261  431 
Nashimura  Ekiu  v.   United 

States,  142  U.  S.  651  232 

National  Bank  of  Commerce 

V.  Ripley,  161  Mo.  126  31 

NewhaU  v.  Sanger,  92  U.  S. 

761  388 

New  Orleans  &  Texas  Pacific 

Ry.  Co.  V.  Bohon,  200  U.  S. 

221  325,  326 

New  York  Central  &  Hudson 

River    R.    R.    v.    United 

States,  212  U.  S.  481  55 

Nickerson  v,  Nickerson,  127 

U.  S.  668  450 

Nishimiya  v.  United  States, 

131  Fed.  Rep.  650  393 

Nixon  V.  Carco,  28  Miss.  414    86 
Northern   Pacific   R.    R.   v. 

Dustan,  142  U.  S.  492  304 

Northern  Pacific  Ry.  Co.  v. 

Hasse,  197  U.  S.  9  389 

Northern  Pacific  Ry.  Co.  v. 


PAGK 


Pacific  &c.  Assn.,  165  Fed. 

Rep.  1  507 

Northern  Pacific  R.  Co.  v, 

Slaght,  205  U.  S.  122  257 

North  Jersey  St.  Ry.  Co.  v. 

Brill,  134  Fed.  Rep.  580; 

S.  C,  67  C.  C.  A.  380,  re- 
versing 124  Fed.  Rep.  778, 

125  Fed.  Rep.  526  528 

Nugent  V,  Boston,  C.  &  M.  R. 

Co.,  80  Me.  62  322,  323 

Nutt  V.  Knut,  200  U.  S.  12        85 
Ohio  Life  Ins.  &  Trust  Co.  v. 

Debolt,  16  How.  416  371 

Old   Nick   Williams   Co.   v. 

United   States,    152   Fed. 

Rep.  925  543 

Oliver  v.  Piatt,  3  How.  333     577 
Oregon  &  California  R.  R.  v. 

United  States,  No.  3,  190 

U.  S.  186  85 

Omelas  v.  Ruiz,  161  U.  S.  502  407 
Osborne  v.  Bank  of  United 

States,  9  Wheat.  738  524 

Owensboro    Nat.    Bank    v. 

Owensboro,  173  U.  S.  664    524 
Oxley  Stave  Co.  v.   Butler 

County,    166   U.    S.    648   590 
Ozan  Lumber  Co.  v.  Union 

County  Bank,  207  U.  S. 

251  526 

Page  V.  McKee,  3  Bush,  135      13 
Paquete  Habana,  The,   175 

U.  S.  677  221 

Patton  V.  Brady,  184  U.  S. 

608  506 

Payne  v.  Hook,  7  WaU.  425 

43,  46,  49 
Peck  V.  Ayres  &  Lord  Tie 

Co.,  116Fed.  Rep.  273         334 
Pennsylvania    Steel    Co.    v. 

Metropolitan    Street    Ry. 

Co.,  170  Fed.  Rep.  623        588 
People's  U.  S.  Bank  v.  Good- 
win, 160  Fed.  Rep.  727        329 
Perego  v.  Dodge,  163  U.  S. 

160  25 

Peterson  v,  Chicago,  R.  I.  & 

Pac.  Ry.  Co.,  205  U.  S.  364  442 
Pettibone    v.    Nichols,    203 

U.  S.  192  68 

Pe)rroux  v.  Howard,  7  Pet. 

324  143 


xlii 


TABLE  OF  CASES  CITED. 


PAGE 


Pfaelzer  v.  Bach  Fur  Co.,  215 

U.  S.  584  585 

Phelps  V.  McDonald,  99  U.  S. 

308  9 

Pierce    v.    Middle    Georgia 

Land  &  Lumber  Co.,  131 

Ga.  99  335 

Pierce  v.  Somerset  Railway, 

171  U.  S.  641  583 

Pittsburg  &c.  Ry.  v.  Loan  & 

Trust  Co.,  172  U.  S.  493  257 
Plummer  t;.  Coler,  178  U.  S. 

115  524 

Pollard,  Ex  partem  4  Deacon, 

27  14 

PoIIeys  V.  Black  River  Co., 

113  U.  S.  81  543 

Pollock  V.  Farmers'  Loan  & 

Trust  Co.,  157  U.  S.  429  524 
Poison  V.  Stewart,  167  Mass. 

211  15 

Pope  Manuf .  Co.  v,  GormuUy, 

144  U.  S.  224  450 

Postal  Telegraph-Cable  Co.  v. 

Adams,  155  U.S.  688  470 

Powers  V.  C.  &  O.  Ry.,  169 

U.  S.  92  250,  251 

Presidio  Coimty  v.  Noel- 
Young  Bond  Co.,  212  U.  S. 

58  359 

Prosser  v.  Northern  Pacific 

R.  R.,  152  U.  S.  59  79 

Provident   Chemical    Works 

17.  Hygienic  Chemical  Co., 

170  Fed.  Rep.  523  159,  160 
Rail  &  River  Coal  Co.  v.  B.  & 

O.  R.  R.  Co.,  14  I.  C.  C. 

Rep.  94  495,  496,  497 

Railroad  Comm.  of  Ohio  v, 

Hocking  Valley  Ry.  Co.,  12 

I.C.C.Rep.398  463,496 

Railroad  Co.  v.  Baldwin,  103 

U.  S.  426  389 

Railroad  Co.  v.  Peniston,  18 

Wall.  5  594 

Railway   Co.   v.   Sayles,   97 

U.  S.  554  168 

Rainbow  v.  Young,  161  Fed. 

Rep.  835  291,  296 

Ralls  County  Court  v.  United 

States,  105  U.  S.  733  176,  177 
Rand,  McNally  &  Co.  v.  Com- 
monwealth, 106  S.  W.  Rep. 


PAGR 


238;  5.  C,  108  S.  W.  Rep. 

892,  32  Ky.  Law  Rep.  441, 

1168  583 

Reavis  V.  Fianza,  215  U.  S.  16  414 
R^ggel,  Ex  parUy  114  U.  S. 

642  68 

Reid  V,  Colorado,  187  U.  S. 

137  524 

Remington  v.  Central  Pacific 

R.  R.  Co.,  198  U.  S.  95  440 
Resolute,  The,  168  U.  S.  437  138 
Reynes  v.  Dumont,  130  U.  S. 

354  25,  116 

Rice  V.  Ames,  180  U.  S.  371  231 
Richmond  v.  Irons,  121  U.  S. 

27  593 

Robertst7.Reilly,116U.S.80  68 
Robert  W.  Parsons,  The,  191 

U.  S.  17  143 

Robinson    v.    Campbell,    3 

Wheat.  212  364 

Rosalie,  The,  1  Spink,  188  140 
Rmnford  Chemical  Works  v. 

Hygienic     Chemical     Co., 

148  Fed.  Rep.  862  160 

Rumford  Chemical  Works  v. 

Hygienic     Chemical     Co., 

154Fed.  Rep.  65;5.C.,83 

C.  C.  A.  177  158 

Rumford  Chemical  Works  v. 

Hygienic     Chemical     Co., 

159  Fed.  Rep.  436;  S.  C, 

86  C.  C.  A.  416  158 

Rumford  Chemical  Works  v. 

New  York  Baking  Powder 

Co.,    134  Fed.   Rep.   385; 

S,  C,  67  C.  C.  A.  367  159 

Russell  V,  Southard,  12  How. 

139  363,  552,  553 

San  Francisco  v.  Itsell,  133 

U.  S.  65  130 

Sayward  v.  Denny,  158  U.  S. 

180  585,  589 

School  District  v.  Hall,  106 

U.  S.  428  544 

Schweer  v.  Brown,  195  U.  S. 

171  137 

Scotland    County    Court    v. 

Hill,  140  U.  S.  41  178 

Scott  V.  Armstrong,  146  U.  S. 

499  125 

Scranton    v.    Wheeler,    179 

U.  S.  141  79 


TABLE  OF  CASES  CITED. 


xliii 


PAGE 


Scully  V.  Bird,  209  U.  S.  481  138 
Scully  V.  Squier,  13  Idaho, 

417  150,  151,  152,  153 

Seibert  v.  Lewis,  122  U.  S. 

284  178 

Sharon  v.  Tucker,  144  U.  S. 

533  335 

Shaw  V.  Quincy  Mining  Co., 

145  U.  S.  444  512 

Shepard  v.  Barron,  ld4  U.  S. 

553  583 

Shields  v.  Barrow,  17  How. 

130  48 

Shively  v.  Bowlby,  152  U.  S. 

1  77,  78,  79 

Silsbee  v.  Webber,  171  Mass. 

378  266 

Simmons  Creek  Coal  Co.  v. 

Doran,  142  U.  S.  417  335 

Sinnott    v,    Davenport,    22 

How.  227  524 

Smoot  V.  Judd,  184  Mo.  508  442 
Snyder  v.  Stribling,  18  Okla. 

168  261 

Soper  V,  Lawrence  Brothers 

Co.,  201  U.  S.  359  22 

Southern  Ry.  Co.  v.  St.  Louis 

Hay  Co.,  214  U.  S.  297  105 
Southern  Ry.  Co.  v.  Tift,  206 

U.  S.  428  500 

St.  Qair  v.  Cox,  106  U.  S.  350  442 
Stanley  County  v.  Coler,  190 

U.  S.  437  359 

State  V.  Bland,  186  Mo.  691  589 
State  V,  Columbia  George,  39 

Ore.  127 ;  S,  C,  201  U.  S. 

641  291 

State  V.  Mayor  <&c.  of  New 

Orleans,  119  La.  623  173 

SUte  ex  rd.  v.  Road  Co.,  207 

Mo.  54  339 

State  ex  rel.  Flaherty  v.  Han- 
son, 16  No.  Dak.  347  519-523 
State  ex  rel,  Haskell  v,  Hus- 
ton, 21  Okla.  782  592 
Steamship   Co.  v.  Tugman, 

106U.  S.  118  324 

Stephens  v.  Cherokee  Nation, 

174  U.  S.  445  61 

Stemaman,  Ex  parte,  77  Fed. 

Rep.  595  230 

Stone  V.  South  Carolina,  117 

U.  S.  430  324 


PAGE 


Stringfellow  v.  Cain,  99  U.  S. 

610  155 

Stuart  V.  Hauser,  203  U.  S. 

585  585 

Stupp,  In  re,  12  Blatch.  501    407 
Sunaerland  Bros.  v.  Chicago, 

R.  I.  &  P.  Ry.  Co.,  158 

Fed.  Rep.  877  507 

Suydam  v.  Broadnax,  14  Pet. 

67  43 

Swice   V.   Maysville   &   Big 

Sandy  Ry.  Co.,  116  Ky. 

252  318,  330 

Swift  V.  Tyson,   16  Pet.   1 

364,  370,  371 
Sylvester  v,  Washington,  46 

Wash.  585  85 

Taylor  v.  Beckham,  178  U.  S. 

548  592 

Tees,  The,  Lush,  505  140 

Tennessee  v.  Davis,  100  U.  S. 

257  507 
Tennessee  v.  Union  &  Plant- 
ers' Bank,  152  U.  S.  454       514 

Terlinden  v.  Ames,  184  U.  S. 
270  407 

Texas  &  Pacific  Ry.  Co.  v. 
Abilene  Cotton  Oil  Co.,  204 
U.  S.  426    464,  493,  494, 

498,500 

Thomas  v.  State,  209  U.  S. 

258  257 
Tift  V.  Southern  Ry.  Co.,  123 

Fed.  Rep.  789  507 

Toledo,  A.  A.  &  N.  M.  Ry. 
Co.  V.  Pennsylvania  Co., 
54  Fed.  Rep.  730  507 

Toy  Toy  v.  Hopkins,  212 
tJ.  S.  542  291 

Traction  Co.  v.  Mining  Co., 
196  U.  S.  239  325 

Traer  v.  Chicago  &  Alton  R. 
R.  Co.,  13 1.  C.  C.  Rep.  451  464 

Trustees  of  Union  College  v. 
aty  of  New  York,  173 
N.  Y.  38  576 

Tyler  v.  Judges  of  Registra- 
tion, 179  U.  S.  405  346 

Tynan  v.  Warren,  53  N.  J. 
Eq.  313  578 

Union  Pacific  Ry.  Co.  v, 
Douglas  County,  31  Fed. 
Rep.  540  389,  391 


xliv 


TABLE  OF  CASES  CITED. 


PAGE 


V\s\\i\\  IVirti'  It  H.v.  Harris, 

m  K»*H  yAft  388 

IthlUitl  H\tx\m  V.  Halt.  <&  Ohio 

M    M  ,  Ift4  I' ml.  llep.  108     491 
UhMm(I  HttitHN  V.  Bait.  <&  Ohio 

H     Co.,    16ft    Fed.    Rep. 

\\l\  492 

I  lull  lid  HiiiieH  V,  Bartow,  10 

\iml  lt«p,  874  238,239 

1 1(11 1  mt   HtatftH  V.   Braun  & 

KaU,  IftHFed.  Ilep.  456        54 
|/uit4iil   HtateH  v.   Celestine, 

'il5U,  H.  278  294,295 

VuiUiil  Htates  v.  Qark,  200 

fl.  H.  rJOl  87 

Unitml  Htates  v.  Clarke,  8 

I 'at.  436  415 

UiiiUid  Htates  v.  Ferreira,  13 

IU)W,  40  224 

Uiuted  Htates  v.  Guglard,  79 

Vml  llcp.  21  334 

IJiiited  Htates  v.  Hartwell,  6 

Wall.  385  242 

United  Htates  v,  Hermanos, 

209  U.  H.  337  396 

United  Htates  v.  Rowland,  4 

Wheat.  108  364 

United  Htates  v.  Keitel,  211 

U.  H.  370    31,   195,   196, 

237  294 
United  Htates  v.  Larkin,  208 

U.  H.  333  137,  587 

United  Htates  v.  Le  Bris,  121 

U.  H.  278  285 

United  Htates  v.  McBratney, 

104  U.  B.  621  295 

United    Htates    v.     Mission 

Ilock  Ck).,  189  U.  H.  391         79 
United  Htates  v.  Mullin,  71 

Fed.  Rep.  682  291,  296 

United  Htates  v.  Nishimiya, 

137  Fed.  Rep.  396;  S.  C, 

69  C.  C.  A.  588  393,  397 

United  Htates  v,  Perrin,  131 

U.  H.  55  221 

United  Htates  v.  Rickert,  188 

U.  H.  432  296 

United  Htates  v.  Rider,  163 

U.  H.  132  221 

United  Htates  v.  Rio  (irande 

Irrigation  Co.,   174  U.  H. 

690  267,  268 

United  Htates  v.  Rio  Grande 


PAOB 


Dam  &  Irrigation  Co.,  184 

U.  H.  416  268 

United  Htates  v.  Hnyder,  149 

U.  H.  210  525 

United  Htates  v,  Htevenson, 

215  U.  H.  190  202,  203 

United  Htates  v.  Union  Hup- 

ply  Co.,  215  U.  H.  50      32,  243 
United  Htates  v.  Vallejo,  1 

Black,  541  415 

United  Htates  v,  Winans,  198 

U.  H.  371  79 

United  Htates  v,  Yale  Todd, 

13  How.  40  224 

United  Htates  ex  rel.  Pitcaim 

Coal  Co.  V.  B.  &  O.  R.  R. 

Co.,  165  U.H.  113  461 

Van    Hoffman    v.    City    of 

Quincy,  4  Wall.  535  178 

Van  Zandt  v.  Hanover  Nat. 

Bank,  149  Fed.  Rep.  127 

112,  123 
Vick  V,  The  Mayor,  1  How. 

(Miss.)  379  362 

Wabash  R.  R.  Co.  v.  Adel- 

bert  College,  208  U.  H.  38      92 
Wabash  Western  Ry.  Co.  v. 

Brow,  164  U.  H.  271    441,  444 
Wagg  V.  Herbert,   19  Okla. 

525  548 

Walden  v,  Bodley,   14  Pet. 

156  45 

Waldron    v.    Waldron,    156 

U.  H.  361  545 

Walker  v.  Robbins,  14  How. 

584  443 

Washington  &  Idaho  R.  R. 

Co.  V.  Osbom,  160  U.  H.  103  390 
Waters-Pierce    Oil    Co.     v, 

Texas,  212  U.  H.  86,  112      590 
Watkins  v.  Holman  et  cU,,  16 

Pet.  25  9 

Watts  V.  Watts,   160  Mass. 

464  214 

Watts  et  al.  v.  Waddle  et  al,, 

6  Pet.  389  8,  13 

Webster  v.  Cooper,  10  How. 

54  221 

Wecker  v.  National  Enamel- 
ing Co.,  204  U.  H.  176 

316,  326,  328,  329,  330 
West  V.  Hitchcock,  205  U.  H. 

80  63 


TABLE  OF  CASES  CITED. 


xlv 


PAGE 


Western  Loan  &  Savings  Co. 

V.  Butte  &  Boston  Con. 

Mining  Co.,  210  U.  S.  368 

443,508 
Western  Pacific  R.  R.  Co.  v, 

Tevis,  41  Cal.  489  391 

Wheaton  1?.  Peters,  8  Pet.  591  188 
Whitcomb  v.  Smithson,  175 

U.  S.  635  250,  251,  316 

White  V.  Leovy,  134  U.  S.  91  583 
White-Smith  Music  Pub.  Co. 

V.  Apollo  Co.,  209  U.  S.  1  188 
White  V.  Turk,  12  Pet.  238  221 
Whitney  v.   United  States, 

181  U.  S.  104  416 

WilUaros  v.  Morris,  95  U.  S. 

444  451 


PAOB 


Willson  i;.   Blackbird  Creek 

Marsh  Co.,  2  Pet.  245  524 

Wilson  V.  North  Carolina,  169 

U.  S.  586  583 

Wilson  17.  Standefer,  184  U.  S. 

399  436 

Wmn,  In  re,  213  U.  S.  458  587 
Winters  v,  Duluth,  82  Minn. 

127  32 

Wolff  V.  New  Orleans,   103 

U.  S.  358  176,  180 

Woods  V,  Carl,  203   U.   S. 

358  526 

Yates  17.  Milwaukee,  10  Wall. 

497  364 

Yordi,  Ex  parU,   166  Fed. 

Rep.  921  229 


TABLE  OF  STATUTES 


CITED  IN  OPINIONS 


(A.)  Statutes  of  the  Unitbd  States. 


PAQB 

1789,  Sept.  24,  1  Stat.  73. . .     43 
1802,  Apr.  29,   §  6,  2  Stat. 

156,  c.  31 222 

1820,  Apr.  24,  3  Stat.  566, 

C.51 71 

1832,  Laws  of  1832,  c.  174, 

S  4i  4  Stat.  564 295 

1834,  June  30,   c.   CLXI,  4 

Stat.  729 284 

1850,  Sept.  27,  9  Stat.  496, 

C.76 71,77,83 

§4 ..85,86 

§  8 86 

1853,  Mch.  2,  10  Stat.  172, 

c.  90 84 

§  13 85 

1854,  July  17,  §  2,  10  Stat. 

305,  c.  84 86 

1862,  July  1,   12  Stat.  489, 

c.  120 386,389,390 

1863,  Laws  of  1863,  c.  76, 

§  1,  12  Stat.  738 32 

1864,  June  3,  §  53,  13  Stat. 
116,  c.  106 241 

1864,  June  30,  $  13,  13  Stat. 

306,  c.  174 225 

1864,  July  2,   13  Stat.  356, 

C.216 387,389,390 

1866,  July  3,  14  Stat.  79,  c. 

159 387,  389 

1872,  June  1,  17  Stat.  196, 

c.  255    222 

187*4,  Laws  of  1874,  "c.  391, 

§  12,  18  Stat.  188 32 

1875,  Feb.  8,  §  16,  18  Stat. 
307,  c.  36,  as  amended 
by  §  4  of  act  of  Mch.  1, 
1879,  20  Stat.  327,  c. 

125 518 

§  18 517 

1875,  Mch.  3,  18  Stat.  482, 
c.  152 390 


PAOB 

1875,  Mch.  3,  SI)  18  Stat. 
470,  c.  137,  as  amended  by 
act  of  Mch.  3, 1887, 24  Stat. 
552,  c.  373,  as  corrected  by 
act  of  Aug.  13,  1888,  25 
Stat.  433,  c.  866 505,  506 

1877,  Feb.  27,  19  Stat.  240, 

Q^    QQ gjg 

1879,  Mch.  1,  §  4,  20  Stat. 
327,  c.  125 517 

1883,  Mch.  3,  c.  121,  Sched- 
ule A,  22  Stat.  488 396 

1885,  Mch.  3,  23  Stat.  385, 
c.  341 283,288 

1887,  Feb.  4,  24  Stat.  379 

217,  475,  477,  497,  498,  499 

1887,  Feb.  8,  24  Stat.  388, 
C.119 287,288,289,291 

1887,  Mch.  3,  24  Stat.  552, 

c.  373 506 

1888,  Aug.  13,  25  Stat.  433, 

c.  866..  .506,  510,  511,  512,  514 

1889,  Feb.  22,  §  4,  25  Stat. 
677,  c.  180 295 

1889,  Mch.  2,  S  10,  25  Stat. 
855,  c.  382 497,499 

1890,  Oct.    1,    par.    329,    c. 

1244,  26  Stat.  567...  396 
§41 54 

1890,  Laws  of  June  10,  c. 
407,  §9,  26  Stat.  130 26 

1891,  Mch.  3,  26  Stat.  826. .  220 
S5,  c.  517  134,137,438,440 

§6 223,353,355 

§11 543 

1891,  Mch.  3,  §§20,  21,  26 
Stat.  1095-1102,  c.  561 

268,  270,  271,  277, 278 

1894,  Aug.  13,  28  Stat.  278, 
c.  280 536,537,538 

1897,  Jan.  15,  29  Stat.  487, 
c.  29 283 

(xlvii) 


xlviii 


TABLE  OF  STATUTES  CITED. 


PAOB 


1897,  Jan.  20,  §  5,  29  Stat. 

492,  c.  68 438,440 

1897,  Jan.  30,  29  SUt.  506 

293  294 

1897,  July  24,  30  Stat.  151,' 

c.  11 392,393 

1398,  June  28,  §  11,  30  Stat. 

495,  c.  517 61 

§  12 62 

§21 61 

§29 62 

1898,  July  1,  §  256,  30  Stat. 
544 \  ^   544 

1901,  Mch.  2,   31  Stat.  895^ 
910,  c.  803 24 

1901,  Mch.  3,  31  Stat.  1058, 

c.  832 61 

1902,  May  9,  §§  2,  5,  6,  32 
Stat.  193,  c.  784 54 

1902,  July  1,  32  Stat.  641, 
c.  1362 62 

1902,  July  1,  32  Stat.  691, 

c.  1369 22,23,24,25 

1903.  Feb.  11,  32  Stat.  823 

217,  218,  223,  226 
1903,  Mch.  3,  32  Stat.  1213, 
c.  1012 198 

1905,  Feb.  24,  33  Stat.  811, 

c.  778 536,537,538 

1906,  Apr.  26,  §  2,  34  SUt. 
137,0.1876 61,62 

1906,  May  8,  34  Stat.  182, 

c.  2348 291 

1906,  June  11,  34  SUt.  232, 

C.3073 91,93,95 

1906,  June  29,  §  6,  34  SUt. 

584,0.3591 104 

§15 105,469,475,494 

§16 467,  498 

1906,  June  29,  34  SUt.  595 
§16 217,219 

1907,  Feb.   20,    §§  4,   5,   34 
SUt.  898, 0.1134.-194,196 

198  203 
1907,  Mch.  2,  34  SUt.  1246,' 
0.  2564.  ...28,   194,   195, 

280  283  294 
1909,  Aug.  5, 36  SUt.  11,  o.  6  397 


1910,  Penal  Code  effective 
Jan.  1,1910  (§335,  c.  321, 
35  Stat.  1088) 19 

Revised  Statutes. 


§ 
I 
§ 
§ 
§ 
I 
I 
I 


1 54,55 

650 223 

652 223 

654 223 

693 223 

697 223 

709 92 

737 47 

§    906 92 

§    914 260,443 

§    997 544 

§  1008 544 

§  1012 543 

§  2139 295 

I  2332 22,24 

§  2380 288 

§  2387 149,   150, 

153, 154, 155 

§  2844 87 

§§  3232,3233 517 

§  3239  as  amended  by 
act  of  Feb.  27,  1877, 

19  SUt.  240,  c.  69 518 

§  3240 518 

§  3243 518 

§  3317 541 

§  4892 168 

§  4952  as  amended  in 
1891   (3  Comp.  SUt., 

§3406) 188 

§  4953 188 

§  4954 189 

§  4965 186 

§  5209 236,  237, 

238,  240,  241 

§  5211 240 

§  5219 345,347 

§  5240 240 

§  5278 66,  67 

§§  5339-5391,  as  amend- 
ed by  act  of  Jan.  15, 
1897,29  SUt.  487,0. 29  283 

§  5440 202,203 

§  5596 285 


(B.)  Statutes  of  the  States  and  Territories. 


Georgia. 

avil  Code,  1895,  §  3589  335 
§  3878 334 


Georgia — (cont.) . 
§  4927. . . 


334 


TABLE  OF  STATUTES  CITED. 


xlix 


PAGB 


Idaho. 

1866,  Act  reincorporat- 
ing city  of  Lewiston. .   151 
1873,    Jan.   8,    7   Sess. 

Laws,  p.  16 152 

lo^^a 

Code,  i  1305 348 

1322 347 

1373 344 


1868,  Gen.  Stat.  Kan. 

1868,  c.  23,  §24...  382 

§  27 381 

§  32 379,380,381 

i  46 380,381 

1868,  Gen.  Stat.  Kans. 

1868,  c.  23,  §  40,  as 

amended  by  Laws, 

1883,  c.  46,  §1, 

Mch.  7 379 

§  44 380 

I  40 3gQ 

1879,  Laws  of  1879,  ch. 
88,  §1 381 

1889,  Gen.  Stat.  Kans. 
1889,  par.  1192. .. .  379 

Par.  1184 381 

Par.  1200 379 

Par.  1204 380 

Par.  1206 380 

1898,  Laws,  1898,  ch.  10, 

i  14 380,  381 

i  15 381 

1898,  Laws  of  Kans., 
Special  Session,  §  12, 

p.  33 381,382 

1899,  Laws  of  Kans. 
1899 382,  384,  385 

1901,  Gen.  Stats.  1901, 

par.  1302 380,381 

Const.,  Art.  12,  j  2, . . . .  379 
Louisiana. 

1868,  Act  of  Sept.  14, 1868, 

§29 171,  173,  181 

1870.  Acts  of  1870,  No. 

5 173, 175, 178, 

180, 181 
1877,  Act  of  Mch.  31, 

1877 172,  181 

Massachusetts. 

1822,  Const.  1822 ;  Pub. 
Stat.  1882,  p.  871, 
c.  166 214 


PAGE 

Minnesota. 

1866,  Stats.  1866,  Titles 
I  and  II  of  Ch.  XXXIV 

422,  423,  425,  436 

1870,  Feb.  28,  §46 424 

1873,  Bissell's  Stat.  1873, 

pp.  419, 443..  422,  423,  424 
1879,  Mch.  4,  Laws  of 
Minn.    1879,   p.   410, 

c.  299 421,  428, 

430,  431,  436,  437 
Mississippi. 

Code,  §1043 65,67 

Missouri. 

1853,  Feb.  24,  Laws  of 
1853,  pp.  337, 338  339, 340 
Nebraska. 

1901,  276  Comp.  Stat. 

1901,  ch.  25 5 

New  Mexico. 

1897,  Compiled  Laws  for 

1897,   §2764 303 

1903,    Mch.    11,   c.    33, 
p.  51,  Acts  35th  Leg. 

Assemb 90 

1903,   Session  Laws  of 

1903,  ch.  20 304,305 

1907,    Compiled    Laws, 

1907,  Title  33 271 

Code  of  Civil  Procedure, 
c.  1,  Art.  4,  sub.  sec. 

46 271 

Sub.  sec.  87 275 

Code  of  Civil  Procedure, 
§  104,  as  amended  by 
c.  11  of  Laws  of  1901  276 
Laws  of  Territory,  §  897 

306,  307 

§  2771 306 

§  2772 306 

North  Dakota. 

1907,  Mch.  13,  Laws  N. 
Dak.    1907,    p.    307 

518,  520,  521 
Oklahoma. 

1903,     Wilson's    Stats. 
Okla.  1903,  §  746. . . .  265 

§    809 265 

§  4344 265 

Philippine  Islands. 

Organic  Act,  §10 22 

§  16 23,25 

22 23 


TABLE  OF  STATUTES  CITED. 


Philippiae  Islands  (oonJ.). 

i  28 24 

I  45 22,  24 

Civil  Code,  Arts.  1953, 

1957 414 

Art.  1952 414,416 

Code  of  Procedure  in 
Gvil  Actions,  Aug.  7, 
1901,  No.  190,  1 40. .     22 

1  Pub.  Laws  of  Phil. 
Com.  378,  384 22 

PutidAa,l.  18,T.29,p.3  416 

RecopiladoD  de  Leyee 
de  las  Indias,  Book  4, 
TiUel2,Lawl 415 


South  Carolina. 

Code    of    Procedure, 

lino,  171 258 

Washington. 

1855,  Territorial  Act  of 

Jan.  9,  1855 84 

1855,  Territorial  Act  of 

June  28,  1855 84 

1895,Act£of  1895,  c.  95, 

p.  188 85 

1907,  Feb.  4 73,75 

Code,  1 2007  (DOW  4637)       3 
Const.  Art.  XVII 73 


1855,  Jan.  22,  12  Stat. 


927.. 


1355,  June  9, 12  Stat.  951  293 
Choctaw  Indians. 

1820,  Oct.  18,  7  Stat.  210     59 
1830,  Sept.  27,  Art.  2, 

78tat.333 57,58,59 

Arta.4,  5 60 

Choctaw  and  Chickasaw  Indians. 
1837,  Met..  24,  Jl  Stat. 


573.. 


Choctaw  and  Chickasaw  Indians 

(twni.). 

1355,  June  22,  11  Stat. 


611.. 


62 


Apr.  28,  Arts.  U- 

36,  14  Stat.  769 62 

Omalia  Indiaiu. 

1854,  Hch.  16,  10  Stat. 
1043 286,288,295 

Tulalip  Indians. 

1855,  Jan.  22,  12  Stat. 
927 280 


CASES  ADJUDGED 


IN  THE 


SUPREME  COURT  OF  THE  UNITED  STATES 


AT 


OCTOBER  TERM,  1909, 


FALL  V.  EASTIN. 


ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  NEBRASKA. 
No.  24.    Submitted  April  30,  1909.— Decided  November  1,  1909. 

While  a  court  of  equity  acting  upon  the  person  of  the  defendant  may 
decree  a  conveyance  of  land  in  another  jurisdiction  and  enforce  the 
execution  oTlhe  decree  by  process  against  the  defendant,  neither  tho 
decree,  nor  any  conveyance  under  it  except  by  the  party  in  whom 
title  is  vested,  is  of  any  efficacy  beyond  the  jurisdiction  of  the  court. 
CarbeU  v.  NuUy  10  Wall.  464. 

A  court  not  having  jurisdiction  of  the  res  cannot  affect  it  by  its  decree 
nor  by  a  deed  made  by  a  master  in  accordance  with  the  decree. 

Local  legislation  of  a  State  as  to  effect  of  a  decree,  or  a  conveyance 
made  by  a  master  pursuant  thereto,  on  the  res  does  not  apply  to  the 
operation  of  the  decree  on  property  situated  in  another  State. 

The  full  faith  and  credit  clause  of  the  Constitution  does  not  extend  the 
jurisdiction  of  the  coiuts  of  one  State  to  property  situated  in  another 
State,  but  only  makes  the  judgment  conclusive  on  the  merits  of  the 
claim  or  subject-matter  of  the  suit;  and  the  courts  of  the  State  in 
which  land  is  situated  do  not  deny  full  faith  and  credit  to  a  decree  of 
courts  of  another  State,  or  to  a  master's  deed  thereunder,  by  holding 
that  it  does  not  operate  directly  upon,  and  transfer  the  property. 

75  Nebraska,  104,  affirmed. 

VOL.  CCXV — 1  (1) 


2  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

The  facts  are  stated  in  the  opinion. 

Mr.  Charles  J,  Greene,  Mr,  Ralph  W.  Breckenridge  and 
Thomas  H.  Matters,  for  plaintiff  in  error. 

There  was  no  appearance  or  brief  for  defendant  in  error. 
Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

The  question  in  this  case  is  whether  a  deed  to  land  situate 
in  Nebraska,  made  by  a  commissioner  under  the  decree  of  a 
court  of  the  State  of  Washington  in  an  action  for  divorce, 
must  be  recognized  in  Nebraska  under  the  due  faith  and 
credit  clause  of  the  Constitution  of  the  United  States. 

The  action  was  begun  in  Hamilton  County,  Nebraska,  in 
1897,  to  quiet  title  to  the  land  and  to  cancel  a  certain  mort- 
gage thereon,  given  by  E.  W.  Fall  to  W.  H.  Fall,  and  to  can- 
cel a  deed  executed  therefor  to  defendant  in  error,  Elizabeth 
Eastin. 

Plaintiff  alleged  the  following  facts:  She  and  E.  W.  Fall, 
who  was  a  defendant  in  the  trial  court,  were  married  in  Indi- 
ana in  1876.  Subsequently  they  went  to  Nebraska,  and 
while  living  there,  '*by  their  joint  efforts,  accumulations  and 
earnings,  acquired  jointly  and  by  the  same  conveyance"  the 
land  in  controversy.  In  1889  they  removed  to  the  State  of 
Washington,  and  continued  to  reside  there  as  husband  and 
wife  until  January,  1895,  when  they  separated.  On  the 
twenty-seventh  of  February,  1895,  her  husband,  she  and  he 
then  being  residents  of  King  County,  Washington,  brought 
Huit  against  her  for  divorce  in  the  Superior  Court  of  that 
(!ounty.  He  alleged  in  his  complaint  that  he  and  plaintiff 
w(?re  bona  fide  residents  of  King  County,  and  that  he  was  the 
owner  of  the  land  in  controversy,  it  being,  as  he  alleged,  "his 
Hcparate  property,  purchased  by  money  received  from  his 
parentH.'^  Ho  prayed  for  a  divorce  and  "for  a  just  and  equi- 
t/ihle  division  of  the  property." 

PlaintifT  appeared  in  the  action  by  answer  and  cross  com- 


FALL  V.  EASTIN.  3 

215  U.  S.  OpinioD  of  the  Court. 

plaint,  in  which  she  denied  the  allegations  of  the  complaint, 
and  alleged  that  the  property  was  community  property,  and 
"was  purchased  by  and  with  the  money  and  proceeds  of  the 
joint  labor"  of  herself  and  husband  after  their  marriage.  She 
prayed  that  a  divorce  be  denied  him,  and  that  the  property 
be  set  apart  to  her  as  separate  property,  subject  only  to  a 
mortgage  of  $1,000,  which  she  alleged  was  given  by  him  and 
her.  In  a  reply  to  her  answer  and  cross  complaint  he  denied 
that  she  was  the  "owner  as  a  member  of  the  community  in 
conjunction"  with  him  of  the  property,  and  repeated  the 
prayer  of  his  complaint. 

Plaintiff  also  alleges  that  the  Code  of  Washington  con- 
tained the  following  provision : 

"Sec.  2007  [now  4637].  In  granting  a  divorce,  the  court 
shall  also  make  such  disposition  of  the  property  of  the  parties 
as  shall  appear  just  and  equitable  having  regard  to  the  respec- 
tive merits  of  the  parties  and  to  the  condition  in  which  they 
will  be  left  by  such  divorce,  and  to  the  party  through  whom 
the  property  was  acquired,  and  to  the  burdens  imposed  upon 
it  for  the  benefit  of  the  children,  and  shall  make  provision 
for  the  guardianship,  custody  and  support  and  education  of 
the  minor  children  of  such  marriage." 

She  further  alleges  that  that  provision  had  been  construed 
by  the  Supreme  Court  of  the  State  requiring  of  the  parties  to 
an  action  for  divorce  to  bring  into  court  all  of  "  'their  prop- 
erty, and  a  complete  showing  must  be  made, '  "  and  that  it 
was  decided  that  §  2007  [now  4637]  conferred  upon  the  court 
"  'the  power,  in  its  discretion,  to  make  a  division  of  the  sep- 
arate property  of  the  wife  or  husband. '  " 

She  further  alleges  that  a  decree  was  entered  granting  her 
a  divorce  and  setting  apart  to  her  the  land  in  controversy  as 
her  own  separate  property  forever,  free  and  unencumbered 
from  any  claim  of  the  plaintiff  thereto,  and  that  he  was  or- 
dered and  directed  by  the  court  to  convey  all  his  right,  title 
and  interest  in  and  to  the  land  within  five  days  from  the  date 
of  the  decree. 


4  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

She  also  alleges  the  execution  of  the  deed  to  her  by  the 
commissioner  appointed  by  the  court,  the  execution  and  re- 
cording of  the  mortgage  to  W.  H.  Fall  and  the  deed  to  defend- 
ant; that  the  deed  and  mortgage  were  each  made  without 
consideration  and  for  the  purpose  of  defrauding  her,  and  that 
they  cast  a  cloud  upon  her  title  derived  by  her  imder  the 
decree  of  divorce  and  the  commissioner's  deed.  She  prays 
that  her  title  be  quieted  and  that  the  deed  and  mortgage  be 
declared  null  and  void. 

W.  H.  Fall  disclaimed  any  interest  in  the  premises,  and 
executed  a  release  of  the  mortgage  made  to  him  by  E.  W.  Fall. 
Defendant  answered,  putting  in  issue  the  legal  sufficiency  of 
the  complaint,  and,  in  addition,  set  forth  the  fact  of  the  loan 
of  $1,000  to  E.  W.  Fall,  the  taking  of  a  note  therefor  signed 
by  him  and  William  H.  Fall,  the  giving  of  an  indemnity  mort- 
gage to  the  latter,  and  the  execution  subsequently  of  a  deed 
by  E.  W.  Fall  in  satisfaction  of  the  debt.  No  personal  service 
was  had  upon  E.  W.  Fall,  and  he  did  not  appear.  A  decree 
was  passed  in  favor  of  plaintiff,  which  was  affirmed  by  the 
Supreme  Court.  FaU  v.  Fott,  75  Nebraska,  104 ;  106  N.  W.  Rep. 
412.  A  rehearing  was  granted  and  the  decree  was  reversed. 
Judge  Sedgwick,  who  delivered  the  first  opinion,  dissenting. 

There  is  no  brief  for  defendant  in  this  court,  but  the  con- 
tentions of  the  parties  and  the  argument  by  which  they  are 
supported  are  exhibited  in  the  opinions  of  the  Supreme  Court. 

The  question  is  in  narrow  compass.  The  full  faith  and 
credit  clause  of  the  Constitution  of  the  United  States  is 
invoked  by  plaintiff  to  sustain  the  deed  executed  under  the 
decree  of  the  court  of  the  State  of  Washington.  The  argu- 
ment in  support  of  this  is  that  the  Washington  court,  having 
had  jurisdiction  of  the  parties  and  the  subject-matter,  in 
determination  of  the  equities  between  the  parties  to  the 
lands  in  controversy,  decreed  a  conveyance  to  be  made  to  her. 
This  conveyance,  it  is  contended,  was  decreed  upon  equities, 
and  was  as  effectual  as  though  her  '' husband  and  she  had 
been  strangers  and  she  had  bought  the  land  from  him  and 


FALL  V,  EASTIN.  6 

215  U.  S.  Opinion  of  the  Court. 

paid  for  it  and  he  had  then  refused  to  convey  it  to  her."  In 
other  words,  that  the  decree  of  divorce  in  the  State  of  Wash- 
ington, which  was  made  in  consummation  of  equities  which 
arose  between  the  parties  under  the  law  of  Washington,  was 
"evidence  of  her  right  to  the  legal  title  of  at  least  as  much 
weight  and  value  as  a  contract  in  writing,  reciting  the  pay- 
ment of  the  consideration  for  the  land,  would  be." 

The  defendant,  on  the  other  hand,  contends,  as  we  gather 
from  his  petition  for  a  rehearing  in  the  Supreme  Court  of  the 
State  and  from  the  opinions  of  the  court,  that  "the  Wash- 
ington court  had  neither  power  nor  jurisdiction  to  effect  in 
the  least,  either  legally  or  equitably,"  lands  situated  in 
Nebraska.  And  contends  further  that  by  the  provision  of 
ch.  25,  276  Comp.  St.  1901,  Neb.,  a  court  had  no  jurisdiction 
to  award  the  real  estate  of  the  husband  to  the  wife  in  fee  as 
alimony,  and  a  decree  in  so  far  as  it  attempts  to  do  so  is  void 
and  subject  to  collateral  attack.  For  this  view  are  cited 
Cissdc  V.  Cizek,  69  Nebraska,  797,  800;  Aldrich  v.  Stem,  100 
N.  W.  Rep.  311,  312. 

The  contentions  of  the  parties,  it  will  be  observed,  put  in 
prominence  and  as  controlling  dififerent  propositions.  Plain- 
tiff urges  the  equities  which  arose  between  her  and  her  hus- 
band, on  account  of  their  relation  as  husband  and  wife,  in  the 
State  of  Washington,  and  imder  the  laws  of  that  State.  The 
defendant  urges  the  policy  of  the  State  of  Nebraska,  and  the 
inability  of  the  court  of  Washington  by  its  decree  alone  or 
the  deed  executed  through  the  commissioners  to  convey  the 
land  situate  in  Nebraska.  To  the  defendant's  view  the  Su- 
preme Court  of  the  State  finally  gave  its  assent,  as  we  have 
seen. 

In  considering  these  propositions  we  must  start  with  a  con- 
cession of  jurisdiction  in  the  Washington  court  over  both  the 
parties  and  the  subject-matter.  Jurisdiction  in  that  court  is 
the  first  essential,  but  the  ultimate  question  is,  What  is  the  ef- 
fect of  the  decree  upon  the  land  and  of  the  deed  executed  under 
it?    The  Supreme  Court  of  the  State  concedes,  as  we  under- 


6  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

stand  its  opinion,  the  jurisdiction  in  the  Washington  court 
to  render  the  decree.    The  court  said  (75  Nebraska,  104,  128) : 

"We  think  there  can  be  no  doubt  that  where  a  court  of 
chancery  has  by  its  decree  ordered  and  directed  persons 
properly  within  its  jurisdiction  to  do  or  refrain  from  doing  a 
certain  act,  it  may  compel  obedience  to  this  decree  by  appro- 
priate proceedings,  and  that  any  action  taken  by  reason  of 
such  compulsion  is  valid  and  effectual  wherever  it  may  be 
assailed.  In  the  instant  case,  if  Fall  had  obeyed  the  order 
of  the  Washington  court  and  made  a  deed  of  conveyance  to 
his  wife  of  the  Nebraska  land,  even  imder  the  threat  of  con- 
tempt proceedings,  or  after  duress  by  imprisonment,  the  title 
thereby  conveyed  to  Mrs.  Fall  would  have  been  of  equal  weight 
and  dignity  with  that  which  he  himself  possessed  at  the  time 
of  the  execution  of  the  deed." 

But  Fall,  not  having  executed  a  deed,  the  court's  conclu- 
sion was,  to  quote  its  language,  that  "neither  the  decree  nor 
the  commissioner's  deed  conferred  any  right  or  title  upon  her." 
This  conclusion  was  deduced,  not  only  from  the  absence  of 
power  generally  of  the  courts  of  one  State  over  lands  situate 
in  another,  but  also  from  the  laws  of  Nebraska  providing  for 
the  disposition  of  real  estate  in  divorce  proceedings.  The 
court  said  (75  Nebraska,  133) : 

"  Under  the  laws  of  this  State  the  courts  have  no  power  or 
jurisdiction  in  a  divorce  proceeding,  except  as  derived  from 
the  statute  providing  for  such  actions,  and  in  such  an  action 
have  no  power  or  jurisdiction  to  divide  or  apportion  the  real 
estate  of  the  parties.  Nygren  v.  Nygren,  42  Nebraska,  408; 
lirotherton  v.  BrotherUm,  15  N.  W.  Rep.  347;  Cizek  v.  Cizek, 
m  Nebmska.  797;  Aldrkh  v.  Steen,  100  N.  W.  Rep.  311.  In 
Cizek  v.  Cizeky  Cizek  brought  an  action  for  divorce  and  his 
wife  fiUnl  a  cross  bill  and  asked  for  alimony.  The  court  dis- 
missed t  he  husband^s  bill,  found  in  favor  of  the  wife,  and,  by 
stipulation  of  the  parties,  set  off  to  the  wife  the  homestead 
and  onlonnl  her  to  execute  to  the  husband  a  mortgage  thereon, 
t  huH  endeavoring  to  make  an  equitable  division  of  the  property. 


FALL  V.  EASTIN.  7 

215  U.  S.  Opinion  of  the  Court. 

Afterwards  in  a  contest  arising  between  the  parties  as  to  the 
right  of  possession  of  the  property,  the  decree  was  pleaded  as 
a  source  of  title  in  the  wife,  but  it  was  held  that  that  portion 
of  the  decree  which  set  off  the  homestead  to  the  wife  was  ab- 
solutely void  and  subject  to  collateral  attack,  for  the  reason 
that  no  jurisdiction  was  given  to  the  District  Court  in  a  di- 
vorce proceeding  to  award  the  husband's  real  estate  to  the 
wife  in  fee  as  alimony.  The  courts  of  this  State  in  divorce 
proceedings  must  look  for  their  authority  to  the  statute,  and 
so  far  as  they  attempt  to  act  in  excess  of  the  powers  therein 
granted  their  action  is  void  and  subject  to  collateral  attack. 
A  judgment  or  decree  of  the  natiu'e  of  the  Washington  decree, 
so  far  as  affects  the  real  estate,  if  rendered  by  the  courts  of 
this  State  would  be  void. 

"The  decree  is  inoperative  to  affect  the  title  to  the  Ne- 
braska land  and  is  given  no  binding  force  or  effect  so  far  as 
the  courts  of  this  State  are  concerned,  by  the  provisions  of 
the  Constitution  of  the  United  States  with  reference  to  full 
faith  and  credit.  Since  the  decree  upon  which  the  plaintiff 
bases  her  right  to  recover  did  not  affect  the  title  to  the  land 
it  remained  in  E.  W.  Fall  until  divested  by  operation  of  law 
or  by  his  voluntary  act.  He  has  parted  with  it  to  Elizabeth 
Eastin  and  whether  any  consideration  was  ever  paid  for  it  or 
not  is  immaterial  so  far  as  the  plaintiff  is  concerned,  for  she 
is  in  no  position  to  question  the  transaction,  whatever  a  cred- 
itor of  Fall  might  be  able  to  do." 

It  is  somewhat  difficult  to  state  precisely  and  succinctly 
wherein  plaintiff  disagrees  with  the  conclusions  of  the  Supreme 
Court.     Counsel  says: 

"  It  is  not  claimed  that  the  Washington  court  could  create 
an  equity  in  lands  in  Nebraska  by  any  finding  or  decree  it 
might  make,  and  thus  bind  the  courts  of  a  sister  State;  but  it  is 
claimed  that  where  rights  and  equities  already  exist,  the  par- 
ties being  within  the  jurisdiction  of  the  court,  it  can  divide 
them  and  apportion  them  by  a  judgment  or  decree  which 


8  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  216  U.  S. 

would  be  conclusive  upon  the  parties  in  any  subsequent  pro- 
ceeding in  a  court  having  jurisdiction  of  the  lands,  for  the  pur- 
pose of  quieting  the  title  in  the  equitable  owner." 

If  we  may  regard  this  as  not  expressing  a  complete  opposi- 
tion to  the  views  of  the  Supreme  Court,  we  must  at  least  treat 
it  as  contradicting  their  fundamental  principle,  that  is,  that 
the  decree  as  such  has  no  extraterritorial  operation. 

The  territorial  limitation  of  the  jurisdiction  of  courts  of  a 
State  over  property  in  another  State  has  a  limited  exception  in 
the  jurisdiction  of  a  court  of  equity,  but  it  is  an  exception  well 
defined.  A  court  of  equity  having  authority  to  act  upon  the 
person  may  indirectly  act  upon  real  estate  in  another  State, 
through  the  instrumentality  of  this  authority  over  the  person. 
Whatever  it  may  do  through  the  party  it  may  do  to  give  effect 
to  its  decree  respecting  property,  whether  it  goes  to  the  entire 
disposition  of  it  or  only  to  effect  it  with  liens  or  burdens.  Story 
on  Conflict  of  Laws,  §  544.  In  French,  Trustee,  v.  Hay,  22  Wall. 
250,  252,  this  court  said  that  a  court  of  equity  having  jurisdic- 
tion in  personam  has  power  to  require  a  defendant  "  to  do  or  to 
refrain  from  doing  anjrthing  beyond  the  limits  of  its  territorial 
jurisdiction  which  it  might  have  required  to  be  done  or  omitted 
within  the  limits  of  such  territory."  The  extent  of  this  power 
this  court  has  also  defined.  Watts  et  al,  v.  Waddle  et  al.,  6  Pet. 
389,  has  features  like  the  case  at  bar.  The  suit  was  for  the  spe- 
cific performance  of  a  contract  for  the  conveyance  of  land.  It 
became  necessary  to  pass  upon  the  effect  of  a  decree  requiring 
the  conveyance  of  the  lands  concerned.  The  decree  appointed 
a  commissioner  under  a  statute  of  the  State  to  make  the  con- 
veyance in  case  the  defendants  or  any  of  them  failed  to  make 
the  conveyance.  This  court  said:  "A  decree  cannot  operate 
beyond  the  State  in  which  the  jurisdiction  is  exercised.  It  is 
not  in  the  power  of  one  State  to  prescribe  the  mode  by  which 
real  property  shall  be  conveyed  in  another.  This  principle  is 
too  clear  to  admit  of  doubt."  In  reply  to  the  contention  that 
the  deed  of  the  commissioner  was  a  legal  conveyance,  it  was 
said:  "The  deed  executed  by  the  commissioner  in  this  case 


FALL  V.  EASTIN.  9 

215  U.  S.  Opinion  of  the  Court. 

must  be  considered  as  forming  part  of  the  proceedings  in  the 
court  of  chancery,  and  no  greater  effect  can  be  given  to  it  than 
if  the  decree  itself,  by  statute,  was  made  to  operate  as  a  con- 
veyance in  Kentucky  as  it  does  in  Ohio.'' 

In  Waikins  v.  Holman  et  al.,  16  Pet.  25,  57,  passing  on  a  de- 
cree made  by  the  Supreme  Court  in  Massachusetts  by  virtue  of 
a  statute  of  that  State,  it  was  said : 

*'No  principle  is  better  established  than  that  the  disposition 
of  real  estate,  whether  by  deed,  descent  or  by  any  other  mode, 
must  be  governed  by  the  law  of  the  State  where  the  land  is  sit- 
uated." 

And  further: 

"  A  court  of  chancery,  acting  in  personam,  may  well  decree 
the  conveyance  of  land  in  any  other  State,  and  may  well  en- 
force its  decree  by  process  against  the  defendant.  But  neither 
the  decree  itself  nor  any  conveyance  under  it,  except  by  the 
person  in  whom  the  title  is  vested,  can  operate  beyond  the  ju- 
risdiction of  the  court." 

See,  also,  Massie  v.  WattSy  6  Cranch,  148,  and  MiUer  v. 
Sherry,  2  Wall.  237,  248,  249. 

In  Carbett  v.  NuU,  10  Wall.  464,  475,  the  doctrine  was  re- 
peated that  a  court  of  equity  acting  upon  the  person  of  the  de- 
fendant may  decree  a  conveyance  of  land  situated  in  another 
jurisdiction,  and  even  in  a  foreign  country,  and  enforce  the  ex- 
ecution of  the  decree  by  process  against  the  defendant,  but,  it 
was  said :  "  Neither  its  decree  nor  any  conveyance  under  it,  ex- 
cept by  the  party  in  whom  the  title  is  vested,  is  of  any  efficacy 
beyond  the  jurisdiction  of  the  court."  This,  the  court  de- 
clared, was  familiar  law,  citing  WcUkins  v.  Holman,  supra.  See, 
also,  Brine  v.  Insurance  Company,  96  U.  S.  627,  635;  Phelps  v. 
McDonald,  99  U.  S.  308. 

In  Boone  v.  Chiles,  10  Pet.  177,  245,  it  is  said  that  a  com- 
missioner is  in  no  sense  an  agent  of  the  party,  but  is  an  officer 
of  the  court,  and  acts  strictly  under  its  authority. 

Later  cases  assert  the  same  doctrine.  In  Carpenter  v. 
Strange,  141  U.  S.  87, 105,  a  court  of  New  York  had  declared  a 


8  OCTOBER  TERM,  1909. 

Opinion  o(  the  Court.  216  U.  8. 

would  be  conclusive  upon  the  parties  in  any  subsequent  pro- 
ceeding in  a  court  having  jurisdiction  of  the  lands,  for  the  pur^ 
pose  of  quieting  the  title  in  the  equitable  owner." 

If  we  may  regard  this  as  not  expressing  a  complete  opposi- 
tion to  the  views  of  the  Supreme  Court,  we  must  at  least  treat 
it  as  contradicting  their  fundamental  principle,  that  is,  that 
the  decree  as  such  has  no  extraterritorial  operation. 

The  territorial  limitation  of  the  jurisdiction  of  courta  of  a 
State  over  property  in  another  State  has  a  limited  exception  in 
the  jurisdiction  of  a  court  of  equity,  but  it  is  an  exception  well 
defined.    A  court  of  equity  having  authority  to  act  upon  the 
person  may  indirectly  act  upon  real  estate  in  another  State, 
through  the  instrumentality  of  this  authority  over  the  person. 
Whatever  it  may  do  through  the  party  it  may  do  to  give  effect 
to  its  decree  respecting  property,  whether  it  goes  to  the  entire 
disposition  of  it  or  only  to  effect  it  with  liens  or  burdens.   Story 
on  Conflict  of  Laws,  §  544.   In  French,  Trustee,  v.  Hay,  22  Wall. 
250,  252,  this  court  said  that  a  court  of  equity  having  jurisdic- 
tion in  personam  has  power  to  require  a  defendant  "  to  do  or  to 
refrmn  from  doing  anything  beyond  the  limits  of  its  territorial 
jurisdiction  which  it  might  have  required  to  be  done  or  omitted 
within  the  limits  of  such  territory."   The  extent  of  this  power 
this  court  has  also  defined.    Watis  et  al.  v.  Waddle  et  al.,  6  Pet. 
389,  has  features  like  the  case  at  bar.   The  suit  was  for  the  spe- 
cific performance  of  a  contract  for  the  conveyance  of  land.    It 
became  necessary  to  pass  upon  the  effect  of  a  decree  requiring 
the  conveyance  of  the  lands  concern"^     i'^">  'i'">~a  -nr^in*^.^ 
a  commissioner  under  a  statute  of  t 
veyance  in  case  the  defendants  or  a 
the  conveyance.    This  court  said: 
beyond  the  State  in  which  the  juris 
not  in  the  power  of  one  State  to  pp 
real  property  shall  be  conveyed  in  i 
too  clear  to  admit  of  doubt."    In  n 
the  deed  of  the  commissioner  was  i 
said:  "The  deed  executed  by  the 


FALL  V.  EASTIN.  11 

215  U.  S.  Opinion  of  the  Court. 

provide,  by  statute,  that  if  the  defendant  is  not  found  within 
the  jurisdiction,  or  refuses  to  perform,  performance  in  his  be- 
half may  be  had  by  a  trustee  appointed  by  the  court  for  that 
purpose. 

In  Dull  V.  Blackman,  169  U.  S.  243,  246,  247,  while  recog- 
nizing that  litigation  in  regard  to  the  title  of  land  belongs  to 
the  courts  of  the  State  where  the  land  is  so  located,  it  was  said, 
"  although  if  all  the  parties  interested  in  the  land  were  brought 
personally  before  a  court  of  another  State,  its  decree  would  be 
conclusive  upon  them,  and  thus,  in  effect,  determine  the  title." 

But,  however  plausibly  the  contrary  view  may  be  sustained, 
we  think  that  the  doctrine  that  the  court,  not  having  jurisdic- 
tion of  the  res,  cannot  affect  it  by  its  decree,  nor  by  a  deed 
made  by  a  master  in  accordance  with  the  decree,  is  firmly  es- 
tablished. The  embarrassment  which  sometimes  results  from 
it  has  been  obviated  by  legislation  in  many  States.  In  some 
States  the  decree  is  made  to  operate  per  se  as  a  source  of  title. 
This  operation  is  given  a  decree  in  Nebraska.  In  other  States 
power  is  given  to  certain  officers  to  carry  the  decree  into  effect. 
Such  power  is  given  in  Washington  to  commissioners  appointed 
by  the  court.  It  was  in  pursuance  of  this  power  that  the  deed 
in  the  suit  at  bar  was  executed.  But  this  legislation  does  not 
affect  the  doctrine  which  we  have  expressed,  which  rests,  as  we 
have  said,  on  the  well-recognized  principle  that  when  the 
subject-matter  of  a  suit  in  a  court  of  equity  is  within  another 
State  or  coimtry,  but  the  parties  within  the  jurisdiction  of  the 
court,  the  suit  may  be  maintained  and  remedies  granted  which 
may  directly  affect  and  operate  upon  the  person  of  the  defend- 
ant and  not  upon  the  subject-matter,  although  the  subject- 
matter  is  referred  to  in  the  decree,  and  the  defendant  is  ordered 
to  do  or  refrain  from  certain  acts  toward  it,  and  it  Ls  thus  ulti- 
mately but  indirectly  affected  by  the  relief  granted.  In  such 
case  the  decree  is  not  of  itself  legal  title,  nor  does  it  transfer  the 
legal  title.  It  must  be  executed  by  the  party,  and  obedience  is 
compelled  by  proceedings  in  the  nature  of  contempt,  attach- 
ment or  sequestration.    On  the  other  hand,  where  the  suit  is 


12  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

strictly  local,  the  subject-matter  is  specific  property,  and  the 
relief  when  granted  is  such  that  it  must  act  directly  upon  the 
subject-matter,  and  not  upon  the  person  of  the  defendant,  the 
jurisdiction  must  be  exercised  in  the  State  where  the  subject- 
matter  is  situated.  3  Pomeroy's  Equity,  §§  1317,  1318,  and 
notes. 

This  doctrine  is  entirely  consistent  with  the  provision  of  the 
Constitution  of  the  United  States,  which  requires  a  judgment 
in  any  State  to  be  given  full  faith  and  credit  in  the  courts  of 
every  other  State.  This  provision  does  not  extend  the  juris- 
diction of  the  courts  of  one  State  to  property  situated  in  an- 
other, but  only  makes  the  judgment  rendered  conclusive  on  the 
merits  of  the  claim  or  subject-matter  of  the  suit.  "  It  does  not 
carry  with  it  into  another  State  the  eflBcacy  of  a  judgment  upon 
property  or  persons,  to  be  enforced  by  execution.  To  give  it 
the  force  of  a  judgment  in  another  State  it  must  become  a 
judgment  there;  and  can  only  be  executed  in  the  latter  as  its 
laws  permit."    M'Elmoyle  v.  Cohen,  13  Pet.  312. 

Plaintiff  seems  to  contend  for  a  greater  eflBcacy  for  a  decree 
in  equity  affecting  real  property  than  is  given  to  a  judgment  at 
law  for  the  recovery  of  money  simply.  The  case  of  Burnley 
V.  Stevenson,  24  Ohio  St.  474,  478,  in  a  sense  sustains  her. 
The  action  was  brought  in  one  of  the  courts  of  Ohio  for  the  re- 
covery of  the  possession  of  certain  lands.  The  defendant  set 
up  in  defense  a  conveyance  for  the  same  lands  made  by  a  mas- 
ter commissioner,  in  accordance  with  a  decree  of  a  court  in 
Kentucky  in  a  suit  for  specific  performance  of  a  contract  con- 
cerning the  lands.  The  defendant  in  Burnley  v.  Stevenson 
claimed  title  under  the  master's  deed.  The  court  declared  the 
principle  that  a  court  of  equity,  having  the  parties  before  it, 
could  enforce  specific  performance  of  a  contract  for  lands  sit- 
uate in  another  jurisdiction  by  compelling  the  parties  to  make 
a  conveyance  of  them,  but  said  that  it  did  not  follow  that  the 
court  could  "make  its  own  decree  to  operate  as  such  convey- 
ance." And  it  was  decided  that  the  decree  could  not  have 
such  effect,  and  as  it  could  not,  it  was  "  clear  that  a  deed  exe- 


FALL  l;.  EASTIN.  13 

215  U.  S.  Opinion  of  the  Court. 

cuted  by  a  master,  under  the  direction  of  the  court,"  could 
"  have  no  greater  effect."  Watts  v.  Waddle,  supra^  and  Page  v. 
McKee,  3  Bush,  135,  were  cited,  and  the  master's  deed,  the 
court  said,  "must,  therefore,  be  regarded  as  a  nullity."  But 
the  court  decided  that  the  "  decree  was  in  personam  and  bound 
the  consciences  of  those  against  whom  it  was  rendered."  It 
became,  it  was  in  effect  said,  a  record  of  the  equities  which  pre- 
ceded it,  and  of  the  fact  that  it  had  become,  and  it  was  the 
duty  of  the  defendants  in  the  suit  to  convey  the  legal  title  to 
the  plaintiff.  This  duty,  it  was  further  said,  could  have  been 
enforced  "by  attachment  as  for  contempt;  and  the  fact* that 
the  conveyance  was  not  made  in  pursuance  of  the  order  does 
not  affect  the  validity  of  the  decree,  in  so  far  as  it  determined 
the  equitable  rights  of  the  parties  in  the  land  in  controversy. 
In  our  judgment  the  parties,  and  those  claiming  under  them 
with  notice,  are  still  bound  thereby." 

The  court  proceeded  to  say  that  it  might  be  admitted  that 
the  decree  would  not  constitute  a  good  defense  at  law,  but  that 
it  was  a  good  defense  in  equity,  as  under  the  code  of  Ohio  eq- 
uitable as  well  as  legal  defenses  might  be  set  up  in  an  action 
for  the  recovery  of  land,  and  from  this,  and  the  other  proposi- 
tions that  were  expressed,  concluded  that  as  the  decree  had  the 
effect  in  Kentucky  of  determining  the  equities  of  the  parties  to 
the  land  in  Ohio,  the  courts  of  the  latter  State  "must  accord  to 
it  the  same  effect"  in  obedience  to  the  due  faith  and  credit 
clause  of  the  Constitution  of  the  United  States.  "True,"  the 
court  observed,  "  the  courts  of  this  State  cannot  enforce  the 
performance  of  that  decree,  by  compelling  the  conveyance 
through  its  process  of  attachment;  but  when  pleaded  in  our 
courts  as  a  cause  of  action,  or  as  a  ground  of  defense,  it  must 
be  regarded  as  conclusive  of  all  the  rights  and  equities  which 
were  adjudicated  and  settled  therein,  unless  it  be  impeached 
for  fraud.  See  cases  supra;  also  Davis  v.  Headley,  22  N.  J.  Eq. 
115;  Braum  v.  L.  &  D,  R,  R.  Co.,  2  Beasley  Eq.  (N.  J.)  191; 
Dobson  V.  Pierce,  2  Keman,  156 ;  United  States  Bank  v.  Bank 
of  BaUimore,  7  GiW,  415.'' 


14  OCTOBER  TERM.  1909. 

Holmes,  J.,  concurring.  215  U.  S. 

It  may  be  doubted  if  the  cases  cited  by  the  learned  court 
sustain  its  conclusion.  But  we  will  not  stop  to  review  them  or 
to  trace  their  accordance  with  or  their  distinction  from  the 
cases  which  we  have  cited.  The  latter  certainly  accord  with  the 
weight  of  authority.  There  is,  however,  much  temptation  in 
the  facts  of  this  case  to  follow  the  ruling  of  the  Supreme  Court 
of  Ohio.  As  we  have  seen,  the  husband  of  the  plaintiff  brought 
suit  against  her  in  Washington  for  divorce,  and,  attempting  to 
avail  himself  of  the  laws  of  Washington,  prayed  also  that  the 
land  now  in  controversy  be  awarded  to  him.  She  appeared  in 
the  action,  and,  submitting  to  the  jurisdiction  which  he  had 
invoked,  made  counter-charges  and  prayers  for  relief.  She 
established  her  charges,  she  was  granted  a  divorce,  and  the 
land  decreed  to  her.  He,  then,  to  defeat  the  decree  and  in 
fraud  of  her  rights,  conveyed  the  land  to  the  defendant  in  this 
suit.  This  is  the  finding  of  the  trial  court.  It  is  not  questioned 
by  the  Supreme  Court,  but  as  the  ruling  of  the  latter  court, 
that  the  decree  in  Washington  gave  no  such  equities  as  could 
be  recognized  in  Nebraska  as  justifying  an  action  to  quiet 
title  does  not  offend  the  Constitution  of  the  United  States,  we 
are  constrained  to  aflSrm  its  judgment. 

So  ordered. 

Mr.  Justice  Harlan  and  Mr.  Justice  Brewer  dissent. 

Mr.  Justice  Holmes,  concurring  specially. 

I  am  not  prepared  to  dissent  from  the  judgment  of  the  court, 
but  my  reasons  are  different  from  those  that  have  been  stated. 

The  real  question  concerns  the  effect  of  the  Washington  de- 
cree. As  between  the  parties  to  it  that  decree  established  in 
Washington  a  personal  obligation  of  the  husband  to  convey  to 
his  former  wife.  A  personal  obligation  goes  with  the  person. 
If  the  husband  had  made  a  contract,  valid  by  the  law  of  Wash- 
ington, to  do  the  same  thing,  I  think  there  is  no  doubt  that 
the  contract  would  have  been  binding  in  Nebraska.    Ex  parte 


FALL  V.  EA8TIN.  15 

215  U.  8.  Holmes,  J.,  coneurring. 

PoUard,  4  Deacon,  27,  40;  Pohon  v.  Stewart,  167  Massachu- 
setts, 211.  So  I  conceive  that  a  Washington  decree  for  the 
specific  performance  of  such  a  contract  would  be  entitled  to  full 
faith  and  credit  as  between  the  parties  in  Nebraska.  But  it 
does  not  matter  to  its  constitutional  effect  what  the  ground 
of  the  decree  may  be,  whether  a  contract  or  something  else. 
Faunderoy  v.  I/um,  210  U.  S.  230.  (In  this  case  if  may  have 
been  that  the  wife  contributed  equally  to  the  accumulation  of 
the  property,  and  so  had  an  equitable  claim.)  A  personal  de- 
cree is  equally  within  the  jurisdiction  of  a  court  having  the  per- 
son within  its  power,  whatever  its  ground  and  whatever  it  or- 
ders the  defendant  to  do.  Therefore  I  think  that  this  decree 
was  entitled  to  full  faith  and  credit  in  Nebraska. 

But  the  Nebraska  court  carefully  avoids  saying  that  the  de- 
cree would  not  be  binding  between  the  original  parties  had  the 
husband  been  before  the  court.  The  ground  on  which  it  goes 
is  that  to  allow  the  judgment  to  affect  the  conscience  of  pur- 
chasers would  be  giving  it  an  effect  in  rem.  It  treats  the  case 
as  standing  on  the  same  footing  as  that  of  an  innocent  pur- 
chaser. Now  if  the  court  saw  fit  to  deny  the  effect  of  a  judg- 
ment upon  privies  in  title,  or  if  it  considered  the  defendant  an 
innocent  purchaser,  I  do  not  see  what  we  have  to  do  with  its 
decision,  however  wrong.  I  do  not  see  why  it  is  not  within  the 
power  of  the  State  to  do  away  with  equity  or  with  the  equitable 
doctrine  as  to  purchasers  with  notice  if  it  sees  fit.  Still  less  do 
I  see  how  a  mistake  as  to  notice  could  give  us  jurisdiction.  If 
the  judgment  binds  the  defendant  it  is  not  by  its  own  operar- 
tion,  even  with  the  Constitution  behind  it,  but  by  the  obliga- 
tion imposed  by  equity  upon  a  purchaser  with  notice.  The 
ground  of  decision  below  was  that  there  was  no  such  obligation. 
The  decision,  even  if  wrong,  did  not  deny  to  the  Washington 
decree  its  full  effect.  Bagley  v.  General  Fire  Extinguisher  Co,, 
212  U.  S.  477,  480. 


16  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.S. 


REAVIS  V.  FIANZA. 

APPEAL  FROM  THE  SUPREME  COURT  OP  THE  PHILIPPINE 

ISLANDS. 

No.  16.     Argued  April  26,  27,  1909.— Decided  November  1,  1909. 

This  court  has  jurisdiction  of  this  case ;  for,  even  if  the  requisite  amount 
is  not  involved,  the  meaning  and  effect  of  a  provision  of  the  Philip- 
pine Organic  Act  of  July  1, 1902,  c.  1369,  32  Stats.  691,  is  involved. 

The  provision  of  §  45  of  the  Organic  Act  of  the  Philippine  Islands  re- 
lating to  title  to  mines  by  prescription  refers  to  conditions  as  they 
were  before  the  United  States  came  into  power  and  had  in  view  the 
natives  of  the  islands  and  intention  to  do  them  liberal  justice. 

Courts  are  justified  in  dealing  liberally  with  natives  of  the  Philippines  in 
dealing  with  evidence  of  possession.  Cariho  v.  Insvlar  Government^ 
212  U.  S.  449. 

The  limitation  of  size  of  mining  claims  in  §  22  of  the  Philippine  Or- 
ganic Act  applies  only  to  claims  located  after  the  passage  of  that  act. 

Under  §  28  of  the  Philippine  Organic  Act  a  valid  location  could  not 
be  made  if  the  land  was  occupied  by  one  who  was  already  in  posses- 
sion before  the  United  States  came  into  power,  and  the  claim  of  one 
locating  under  those  conditions  does  not  constitute  an  adverse  claim 
under  §  45  of  that  act. 

A  right  to  an  instrument  that  will  confer  a  title  in  a  thing  is  a  right  to 
the  thing  itself,  and  a  statutory  right  to  apply  for  a  patent  to  mining 
lands  is  a  right  that  equity  will  specifically  enforce. 

Although,  if  seasonably  taken,  an  objection  to  the  form  of  remedy 
might  be  sustained,  after  trial  on  the  merits  it  comes  too  late. 

7  Philippine  Rep.  610,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr,  Frederic  R,  Coudert  and  Mr,  Howard  Thayer  Kings- 
bury, with  whom  Mr,  Paul  Fuller  was  on  the  brief,  for  appel- 
lant: 

This  court  has  jurisdiction  both  as  the  basis  of  the  amount 
involved,  and  because  the  construction  of  a  statute  of  the 


REAVIS  V.  FIANZA.  17 

215  XT.  S.  Argument  for  Appellant. 

United  States  (Act  of  July  1,  1902,  §  45;  32  U.  S.  Stat.  703) 
18  in  question.  The  facts  as  well  as  the  law  are  before  the 
court  for  review.    De  la  Rama  v.  De  la  Ranuiy  201  U.  S.  309. 

The  judgment  of  the  Court  of  First  Instance  was  plainly 
and  manifestly  against  the  weight  of  evidence.  The  Philip- 
pine Supreme  Court  should  have  decided  according  to  the  pre- 
ponderance of  the  evidence.  Act  of  Feb.  26,  1907,  No.  1596, 
Acts  of  Phil.  Com. 

Plaintiffs  had  no  title  to  the  mines  at  the  time  of  the  ces- 
sion and  have  acquired  none  since.  Both  under  Spanish  law 
and  ours,  mines  can  be  acquired  in  private  ownership  only  by 
compliance  with  governmental  regulations.  Translation  of 
Mining  Law  and  Regulations,  War  Dep't,  July,  1900;  Royal 
Decree  of  May  14,  1867;  United  States  v.  CastiOero,  2  Black, 
1,  166.  After  the  cession  the  Spanish  Mining  Laws  continued 
in  force  until  further  legislation  by  Congress.  Strother  v. 
Lucas,  12  Pet.  410,  436.  The  act  of  March  2,  1901,  31  Stat. 
910,  forbade  for  the  time  being  any  government  grant  of 
mining  rights,  and  thus  suspended  recourse  to  former  law. 
Unless  plaintiffs  have  acquired  some  rights  of  property  under 
the  act  of  July  1,  1902,  they  have  none  now,  and  are  mere 
trespassers. 

Section  45  of  the  act  of  July  1, 1902, 32  Stat.  703,  is  almost 
identical  with  §2332,  Rev.  Stat.  It  confers  no  title,  but 
merely  prescribes  what  evidence  shall  entitle  a  claimant  to  a 
patent,  upon  compliance  with  requirements  of  §  37  and  de- 
termination of  any  adverse  claim  under  §  39.  Plaintiffs  at 
most  have  only  a  right  to  apply  for  a  patent ; — a  fus  ad  rem, 
not  a  jus  in  re.  The  Young  Mechanic,  2  Curt.  404;  S.  C,  Fed. 
Gas.  No.  18,180;  The  Carlos  F.  Roses,  177  U.  S.  655,  666;  2 
Lindley  on  Mines,  §  688;  In  re  Smith  Brothers,  7  Copp's  L.  0. 4; 
Byffalo  Zinc  &  Copper  Co.  v.  Crump,  69  S.  W.  Rep.  572; 
Cleary  v.  Skiffich,  28  Colorado,  362;  McCowan  v.  Maday,  16 
Montana,  2^34. 

Rights  founded  on  possession  must  yield  to  a  "location" 
under  the  statutes.  HorsweU  v.  Ruiz,  67  Colorado,  111; 
VOL.  ccxv — 2 


18  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

Kendall  v.  San  Juan  Mining  Co.,  144  U.  S.  658.  Reavis's 
peaceable  adverse  entry  interrupted  plaintiffs'  possession  and 
prevented  them  from  acquiring  title  thereunder.  Bdk  v. 
Meagher,  104  U.  S.  279,  287.  Plaintiffs'  possession  was  in- 
sufficient under  the  Philippine  statute  of  limitations.  Phil. 
Code  of  Proc,  §41;  Hamilton  v.  South  Nev.  Gold  &  Silver 
Min.  Co.,  33  Fed.  Rep.  562.  A  "location"  can  only  be  made 
for  a  territory  not  exceeding  1,000  feet  by  1,000  feet.  32  Stat. 
697,  §  22. 

This  case  is  to  be  distinguished  from  Carino  v.  The  Insular 
Government,  212  U.  S.  449.  There  the  boundaries  were  de- 
fined; the  possession  was  definite  and  exclusive,  and  the 
lands  were  agricultural  and  hence  prescriptible  even  against 
the  Spanish  Crown.  Here  the  plaintiffs  ask  the  court  to 
declare  that  because  a  particular  family  of  Iggorrots  have 
habitually  roamed  over  a  whole  mountain-side  and  taken  out 
a  little  loose  gold,  they  have  acquired  legal  title  to  all  the 
mineral  wealth  below  the  surface  within  whatever  bound- 
aries they  now  choose  to  assert.  Such  a  ruling  would  pre- 
vent the  development  of  the  mineral  resources  of  the  Philip- 
pine Islands.  The  Iggorrots'  conceptions  of  private  property 
hardly  included  subterranean  rights.  The  appellant  asks  the 
court  to  appreciate  a  peculiar  colonial  problem  rather  than 
to  weigh  conflicting  claims  as  to  mining  boundaries. 

Plaintiffs  were  not  entitled  to  an  injimction.  Their  rights 
were  doubtful  and  disputed.  Lawson  v.  U.  S.  Mining/  Co., 
207  U.  S.  1;  GvnUim  v.  DoneUan,  115  U.  S.  45;  Tacoma  Ry. 
&  Power  Co.  v.  Pacific  Traction  Co.,  155  Fed.  Rep.  259.  They 
were  out  of  possession  when  suit  was  brought.  Lacassagne 
V.  Chajmis,  144  U.  S.  119;  Whithead  v.  ShaUuck,  138  U.  S.  146. 
They  should  have  sued  at  law  to  recover  possession.  Ba^o 
V.  Garcia,  5  Phil.  Rep.  524;  Bishop  of  Cebu  v.  Mangaran,  6 
Phil.  Rep.  286;  Barlin  v.  Ramirez,  7  Phil.  Rep.  41;  Black  v. 
Jackson,  177  U.  S.  349;  Potts  v.  Hollen,  177  U.  S.  365. 

The  judgment  of  the  trial  court  should  have  been  reversed 
for  errors  in  the  exclusion  of  material  evidence.    There  is  a 


REAVIS  r.  FIANZA.  19 

215  U.  S.  Argument  for  Appellees. 

presumption  of  harm  from  such  exclusion.  Buckstaff  v.  Rils- 
sc«,  151  U.  S.  626,  637;  Crawford  v.  United  States,  212  U.  S. 
183,  203. 

Mr.  Henry  E.  Davis  for  appellees : 

There  is  no  force  in  the  contention  that  plaintiffs  had  no 
title  to  the  mines  in  controversy  at  the  time  of  the  cession  of 
the  PhiUppine  Islands  and  have  not  since  acquired  any.  The 
case  comes  imder  the  temporary  government  act,  especially 
§45  thereof,  32  Stat.  691,  703,  which  mutaiis  mutandis  is, 
with  very  slight  changes,  identical  with  §  2332,  Rev.  Stat., 
taken  from  the  act  of  May  10,  1872, 17  Stat.  91.  The  scheme 
of  these  acts  was  clearly  to  recognize  in  the  inhabitants  of 
territory  newly  acquired  by  the  United  States,  rights  equiva- 
lent to  those  of  location  and  possession,  anH  of  themselves 
conferring  a  right  to  a  patent  for  mining  lands,  independently 
of  compliance  with  requirements  of  laws  of  the  former  sover- 
eignty and  local  laws  and  customs  inherited  therefrom,  or 
enacted  or  adopted  in  analogy  to  the  institutions  thereof. 

Rev.  Stat.,  §2332,  provides  an  additional  mode  of  acquisi- 
tion of  mineral  land  from  the  Government,  and,  where  pos- 
session has  continued  for  the  prescribed  period  before  an 
adverse  right  exists,  it  is  equivalent  to  a  location  under  the 
laws  of  Congress.  Anthony  v.  JiUsony  83  California,  296,  302; 
Altoona  &c.  Co.  v.  Integral  &c.  Co.,  114  California,  100,  105; 
Min.  Co.  V.  Bidlion  Min.  Co.,  3  Saw.  634,  657,  658;  Harris  v. 
Equalor  &c.  Co.,  8  Fed.  Rep.  863;  Belk  v.  Meagher,  104  U.  S. 
279,  287;  Lavignino  v.  Uhlig,  26  Utah,  125. 

Upon  completion  of  a  location  and  until  patent  issues,  the 
Government  holds  the  title  in  trust  for  the  locator;  and  a 
title  so  acquired  will  be  quieted  on  a  bill  in  equity  even  against 
the  holder  of  a  correct  paper  title.  Noyes  v.  Mantle,  127  U.  S. 
348,  351 ;  Min.  Co.  v.  Bullion  Min.  Co.,  vbi  supra. 

In  dealing  with  the  Philippines,  the  United  States  meant 
to  treat  its  inhabitants  as  it  had  treated  those  of  our  former 
Mexican  territory,  and,  indeed,  to  put  the  former  on  an  even 


20  OCTOBER  TERM,  1909. 

Argument  for  Appellees.  215  U.  8. 

more  favored  footing.  Carino  v.  Insvlar  Government,  212 
U.  S.  449. 

Accordingly,  it  is  beside  the  question  whether  plaintiffs  have 
or  have  not  acquired  any  title  to  the  mines  in  controversy 
since  our  acquisition  of  the  Philippines,  the  facts  being  that 
it  is  not  contended  that  plaintiffs  ever  undertook  to  acquire 
formal  title  to  the  mines  dming  the  Spanish  occupation;  that, 
almost  immediately  upon  our  occupation,  they  were  prohibited 
by  law  from  acquiring  such  title ;  that  they  were  on  their  way 
to  the  acquisition  of  such  when  they  encountered  interference 
by  the  action  of  the  defendant ;  and  that  the  object  of  this 
case  was  and  is  to  free  themselves  from  such  interference. 

Plaintiffs  have  not  mistaken  their  forum,  they  have  a 
right  to  the  remedy  sought  in  this  action. 

Section  39  of  the  act  of  July  1,  1902,  32  Stats.  701,  is  mv^ 
talis  mutandis,  an  exact  reproduction  of  §  2326,  Rev.  Stat., 
as  amended  by  act  of  1881,  with  the  difference  that  the  ques- 
tion of  title  is  provided  to  be  determined  by  judgment  of  the 
court  instead  of  by  verdict  of  a  jury.  Plaintiffs,  instead  of 
going  through  the  form  of  applying  for  a  patent  upon  the 
ground  of  compliance  with  §45. of  the  act  of  July  1,  1902, 
elected  directly  to  institute  proceedings  in  equity.  The  pro- 
priety of  this  proceeding  might  have  been  raised  by  demurrer 
or  apt  objection  in  the  answer,  but  defendant,  having  an- 
swered without  objection  of  any  kind  to  the  proceeding  or  the 
jurisdiction  of  the  court,  and  having  converted  his  answer 
into  a  petition  or  cross-bill  for  affirmative  defense,  closed  the 
door  upon  any  question  as  to  the  propriety  of  the  proceeding 
itself  or  the  jurisdiction  to  determine  the  same  of  the  tribunal 
in  which  it  was  instituted.  16  Cyc.  Law,  117,  129,  131,  and 
cases  cited. 

Any  objection  to  the  jurisdiction  or  proceeding  comes  too 
late  in  the  appellate  tribunal.  Perego  v.  Dodge,  163  U.  S. 
160,  164,  10(),  168. 

The  character  and  extent  of  plaintiff's  possession  are  unim- 
portant, it  being  plain  that  the  acts  of  mining  on  the  part  of 


REAVIS  V.  FIANZA.  21 

215  U.  8.  Opinion  of  the  Court. 

the  plaintiffs  were  as  continuous  as  the  natuire  of  the  business 
and  the  customs  of  the  country  permitted,  and  such  as  to  per- 
mit them  to  do  acts  of  mining  of  which  the  methods,  although 
crude,  were  yet  such  as  were  practiced  and  customary  among 
their  people,  "and  produced  gold."  Stephenson  v.  Wilsorij 
37  Wisconsin,  482;  2  Lind.  on  Mmes,  §  688. 

The  description  of  the  premises  in  controversy,  being  by 
name  of  a  property  well  known,  is  sufficient.  Glazier  Mining 
Co.  V.  WiUis,  127  U.  S.  471,  480. 

And  the  limitation  of  §  22  of  the  act  of  July  1,  1902,  has 
application  only  to  claims  located  after  the  passage  of  the  act. 

The  alleged  exclusion  of  competent  and  material  evidence 
cannot  be  considered,  as  the  same  is  not  to  be  found  in  the 
reasons  assigned  for  the  motion  for  a  new  trial,  nor  in  the  bill 
of  exceptions,  so-called,  nor  in  the  assignments  of  error. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  bill  in  equity  brought  by  the  appellees  to  restrain 
the  appellant  from  setting  up  title  to  certain  gold  mines  in 
the  Province  of  Benguet,  or  interfering  with  the  same,  and 
to  obtain  an  account  of  the  gold  heretofore  taken  from  the 
mines.  The  trial  court  rendered  a  judgment  or  decree  grant- 
ing an  injunction  as  prayed.  Exceptions  were  taken  on  the 
grounds  that  the  findings  of  fact  were  against  the  weight  of 
evidence  and  that  the  judgment  was  against  the  law.  The 
Supreme  Court  reexamined  the  evidence  and  affirmed  the 
decree  below.    Then  the  case  was  brought  here  by  appeal. 

The  appellees  make  a  preliminary  argument  against  the 
jurisdiction  of  this  court,  while  the  appellant  asks  us  to  reex- 
amine the  evidence  and  to  reverse  the  decree  on  the  facts  as 
well  as  the  law.  We  cannot  accede  to  either  of  these  conten- 
tions. We  are  of  opinion  that  this  court  has  jurisdiction.  For 
if  the  affidavits  of  value  should  be  held  to  apply  to  the  whole 
of  Reavis's  claims  and  not  to  only  that  part  of  them  that  are 
in  controversy  here,  still  a  statute  of  the  United  States, 


22  OCTOBER  TERM,  1909. 

OiHmon  of  the  Court.  215  U.  S. 

munely,  a  section  of  the  organic  act  (§  45,  concerning  min- 
ing titles  in  the  Philippines),  is  "involved,"  within  the  meaning 
of  §  10  of  the  same  act,  which  detennines  the  jurisdiction  of 
this  court.  Act  of  July  1,  1902,  c.  1309,  32  Stats.  091.  The 
meaning  and  effect  of  that  section  are  in  question,  and  our 
construction  even  has  some  bearing  upon  our  opinion  that 
the  findings  of  the  two  courts  below  should  not  be  reopened. 
For  apart  from  the  general  rule  prevailing  in  such  cases,  De 
la  Rama  v.  De  la  Rama,  201  U.  S.  303,  309,  we  shall  refer  to 
the  law  for  special  reasons  why  those  findings  should  not  be 
disturbed  in  a  case  like  this. 

The  appellees  are  Iggorrots,  and  it  is  found  that  for  fifty 
years,  and  probably  for  many  more,  Fianza  and  his  ancestors 
have  held  possession  of  these  mines.  He  now  claims  title 
under  the  Philippine  Act  of  July  1,  1902,  c.  1369,  §  45,  32 
Stat.  691.    This  section  reads  as  follows: 

"That  where  such  person  or  association,  they  and  their 
grantors  have  held  and  worked  their  claims  for  a  period  equal 
to  the  time  prescribed  by  the  statute  of  limitations  of  the 
Philippine  Islands,  evidence  of  such  possession  and  working  of 
the  claims  for  such  period  shall  be  sufficient  to  establish  a 
right  to  a  patent  thereto  under  this  Act,  in  the  absence  of  any 
adverse  claim ;  but  nothing  in  this  Act  shall  be  deemed  to  im- 
pair any  lien  which  may  have  attached  in  any  way  whatever 
prior  to  the  issuance  of  a  patent." 

It  is  not  disputed  that  this  section  applies  to  possession 
maintained  for  a  sufficient  time  before  and  until  the  statute 
went  into  effect.  See  Soper  v.  Lawrence  Brothers  Co.,  201  U.  S. 
359.  The  period  of  prescription  at  that  time  was  ten  years. 
Code  of  Procedure  in  Civil  Actions,  August  7,  1901,  No.  190, 
§  40;  1  Pub.  Laws  of  Phil.  Comm.  378,  384.  Therefore,  as  the 
United  States  had  not  had  the  sovereignty  of  the  Philippines 
for  ten  years,  the  section,  notwithstanding  its  similarity  to 
Rev.  Stats.,  §  2332,  must  be  taken  to  refer  to  the  conditions  as 
they  were  before  the  United  States  had  come  into  power.  Es- 
pecially must  it  be  supposed  to  have  had  in  view  the  natives  of 


REAVIS  r.  FIANZA.  23 

215  17.  S.  Opinion  of  the  Court. 

the  islands,  and  to  have  intended  to  do  liberal  justice  to  them. 
By  §  16  their  occupancy  of  public  lands  is  respected  and  made 
to  confer  rights.  In  dealing  with  an  Iggorrot  of  the  Province 
of  Benguet  it  would  be  absurd  to  expect  technical  niceties,  and 
the  courts  below  were  quite  justified  in  their  liberal  mode  of 
dealing  with  the  evidence  of  possession  and  the  possibly  rather 
gradual  settling  of  the  precise  boundaries  of  the  appellees' 
claim.  See  Carino  v.  Insular  Gavemmentf  212  U.  S.  449.  At 
all  events,  they  foimd  that  the  appellees  and  their  ancestors 
had  held  the  claim  and  worked  it  to  the  exclusion  of  all  others 
down  to  the  bringing  of  this  suit,  and  that  the  boundaries  were 
as  shown  in  a  plan  that  was  filed  and  seems  to  have  been  put  in 
evidence  before  the  trial  came  to  an  end. 

It  cannot  be  said  that  there  was  no  evidence  of  the  facts 
foimd,  for  the  plaintiff  Fianza  testified,  in  terms,  that  his 
grandfather  and  father  had  owned  the  mines  in  question,  and 
that  he  and  the  other  appellees  owned  them  in  their  turn,  that 
they  had  all  worked  the  mines,  that  no  one  else  had  claimed 
them,  and  that  the  appellant  had  interfered  with  his  possession, 
and  when  he  put  up  a  sign  had  torn  it  down.  No  doubt  his 
working  of  the  mines  was  slight  and  superficial  according  to  our 
notions,  and  the  possession  may  not  have  been  sharply  asserted 
88  it  would  have  been  with  us,  whether  from  Iggorrot  habits 
or  from  the  absence  of  legal  title  under  Spanish  law.  But  it 
suflBciently  appears  that  the  appellees'  family  had  held  the 
place  in  Iggorrot  fashion,  and  to  deny  them  possession  in  favor 
of  Western  intruders  probably  would  be  to  say  that  the  natives 
had  no  rights  under  the  section  that  an  American  was  bound 
to  respect.  Whatever  vagueness  there  may  have  been  in  the 
boimdaries,  it  is  plain  that  the  appellant  attempted  to  locate  a 
claim  within  them,  and  Fianza  testified  that  the  plan  to  which 
we  have  referred  followed  the  boundaries  that  his  father  showed 
to  him.  It  is  said  that  the  claim  is  larger  than  is  allowed  by 
§  22.  But  the  limitation  of  that  section  applies  only  to  claims 
"  located  after  the  passage  of  this  act. " 

It  is  to  be  assumed  then  that  the  appellees  and  their  ances- 


24  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

tors  had  held  poesession  and  had  worked  their  claims  for  much 
more  than  the  period  required  by  §45,  before  the  moment 
when  the  statute  went  into  efifect.  It  is  to  be  assumed  that  the 
possession  and  working  continued  down  to  within  two  months 
of  that  moment.  But  the  appellant  says  that  he  entered  and 
staked  his  claims  before  that  time  and  then  was  in  possession 
of  them.  On  this  ground,  as  well  as  others  that  are  disposed 
of  by  the  findings  below,  he  contends  that  there  was  an  ad- 
verse claim  within  the  meaning  of  the  act.  But  the  ground  in 
question  was  not  unoccupied  and  therefore  he  could  not  make 
a  valid  claim  imder  §  28.  See  also  act  of  March  2, 1901,  c.  803, 
31  Stats.  895,  910.  He  refiled  a  location  in  October,  1902,  but 
he  did  not  and  could  not  make  the  reqidred  affidavit  because 
of  the  prior  occupation,  and  at  that  date  Fianza  was  within 
the  act,  unless  he  already  had  been  deprived  of  its  benefits. 
Moreover,  it  is  foimd  that  Fianza's  possession  continued  down 
to  the  bringing  of  this  sidt.  This  is  justified  by  the  evidence 
and  is  not  contradicted  by  the  bill.  The  bill,  to  be  sure,  alleges 
that  Reavis  in  1900  illegally  entered  and  deprived  the  appellees 
of  their  mines  and  that  he  still  continues  to  maintain  his  un- 
just claim.  But  further  on  it  alleges  that  in  the  spring  of  1902 
Reavis  was  directed  by  the  Governor  of  Benguet  not  to  molest 
the  appellees;  that  he  then  waited  in  Manila,  and  after  the 
promulgation  of  the  law  ''again  entered,"  set  stakes  and  filed 
a  notice  of  location.  So  that  the  bill  does  not  mean  that  he 
was  continuously  in  possession  or  that  he  was  in  possession 
when  the  law  took  effect.  We  are  of  opinion  that  there  was  no 
adverse  claim  that  would  have  prevented  the  appellees  from 
getting  a  patent  imder  §  45.  See  Bdk  v.  Meagher,  104  U.  S.  279, 
284.  AUoona  Quicksilver  Mining  Co.  v.  Integral  Quicksilver 
Mining  Co.,  114  California,  100,  105.  See  also  McCowan  v. 
Maclay,  16  Montana,  234,  239,  240. 

It  is  suggested  that  the  possession  of  Fianza  was  not  under 
a  claim  of  title,  since  he  could  have  no  title  under  Spanish  law. 
But  whatever  may  be  the  construction  of  Rev.  Stats.,  §  2332, 
the  corresponding  §  45  of  the  Philippine  Act  cannot  be  taken 


REAVIS  I?.  FIANZA.  26 

215  n.  8.  Opinion  of  the  Court. 

to  adopt  from  the  local  law  any  other  requirement  as  to  the 
possession  than  the  length  of  time  for  which  it  must  be  main- 
tained. Otherwise,  in  view  of  the  Spanish  and  American  law 
before  July  1, 1902,  no  rights  could  be  acquired  and  the  section 
would  be  empty  words,  whereas,  as  we  have  said  before,  an- 
other section  of  the  act,  §  16,  still  further  shows  the  intention 
of  Congress  to  respect  native  occupation  of  public  lands. 

Again  it  is  urged  that  the  section  of  itself  confers  no  right 
other  than  to  apply  for  a  patent.  But  a  right  to  an  instrument 
that  will  confer  a  title  in  a  thing  is  a  right  to  have  the  thing. 
That  is  to  say,  it  is  a  right  of  the  kind  that  equity  specifically 
enforces.  It  may  or  may  not  be  true  that  if  the  objection  had 
been  taken  at  the  outset  the  plaintiffs  would  have  been  turned 
over  to  another  remedy  and  left  to  apply  for  a  patent,  but  after 
a  trial  on  the  merits  the  objection  comes  too  late.  See  Perego 
V.  Dodgcy  163  U.  S.  160, 164;  Reynes  v.  Dumont,  130  U.  S.  354, 
395. 

Some  objections  were  taken  to  the  exclusion  of  evidence. 
But  apart  from  the  fact  that  they  do  not  appear  to  have  been 
saved  in  the  exceptions  taken  to  the  Supreme  Court,  and  ir- 
respective of  its  admissibility,  the  evidence  offered  could  not 
have  affected  the  result.  An  inquiry  of  Fianza,  whether  he 
claimed  the  mines  mentioned  in  the  suit  or  those  measured  by 
the  surveyor  who  made  the  plan  to  which  we  have  referred,  was 
met  by  the  allowance  of  an  amendment  claiming  according  to 
the  plan.  A  question  to  another  of  the  plaintiffs,  whether  she 
saw  any  Iggorrots  working  for  Reavis,  would  have  brought  out 
nothing  not  admitted  by  the  bill,  that  Reavis  did  for  a  time 
intrude  upon  the  mines  in  suit.  Upon  the  whole  case  we  are  of 
opinion  that  no  sufficient  ground  is  shown  for  reversing  the 
decree,  and  it  is  affirmed. 

Decree  affirmed. 


26  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 


UNITED  STATES  v,  MESCALL. 

ERROR  TO  THE  CIRCUIT  COURT  OF  THE  UNITED  STATES  FOR  THE 

EASTERN   DISTRICT  OF  NEW   YORK. 

No.  278.    Argued  October  14,  1909.— Decided  November  8,  1909. 

The  rule  of  ejusdem  generis j  that  where  the  particular  words  of  descrip- 
tion are  followed  by  general  terms  the  latter  will  be  regarded  as  re- 
ferring to  things  of  a  like  class  with  those  particularly  described,  is 
only  a  rule  of  construction  to  aid  in  arriving  at  the  real  legislative 
intent  and  does  not  override  all  other  rules.  When  the  particular 
words  exhaust  the  genus  the  general  words  must  refer  to  words  out- 
side of  those  particularized. 

Under  §  9  of  the  Customs  Administrative  Act  of  June  10,  1890,  c.  407, 
26  Stat.  131,  135,  providing  punishment  for  making  and  aiding  in 
false  entries,  the  words  "owner,  importer,  consignee,  agent  or  other 
person"  include  a  weigher  representing  the  Government,  and  his 
acts  come  within  the  letter  and  purpose  of  the  statute. 

Section  9,  chapter  407,  Laws  of  June  10,  1890,  26  Stat. 
130-135,  known  as  the  Customs  Administrative  Act,  under 
which  defendant  was  indicted,  reads  as  follows : 

"That  if  any  owner,  importer,  consignee,  agent,  or  other 
person  shall  make  or  attempt  to  make  any  entry  of  imported 
merchandise  by  means  of  any  fraudulent  or  false  invoice, 
affidavit,  letter,  paper,  or  by  means  of  any  false  statement, 
written  or  verbal,  or  by  means  of  any  false  or  fraudulent 
practice  or  appliance  whatsoever,  or  shall  be  guilty  of  any 
wilful  act  or  omission  by  means  whereof  the  United  States 
shall  be  deprived  of  the  lawful  duties,  or  any  portion  thereof, 
accruing  upon  the  merchandise,  or  any  portion  thereof,  em- 
braced or  referred  to  in  such  invoice,  affidavit,  letter,  paper, 
or  statement,  or  affected  by  such  act  or  omission,  such  mer- 
chandise, or  the  value  thereof,  to  be  recovered  from  the  per- 
son making  the  entry,  shall  be  forfeited,  which  forfeiture 


UNITED  STATES  v,  MESCALL.  27 

215  U.  S.  Statement  of  the  Case. 

shall  only  apply  to  the  whole  of  the  merchandise  or  the  value 
thereof  in  the  case  or  package  containing  the  particular  arti- 
cle or  articles  of  merchandise  to  which  such  fraud  or  false 
paper  or  statement  relates ;  and  such  person  shall,  upon  con- 
viction, be  fined  for  each  ofifense  a  sum  not  exceeding  five 
thousand  dollars,  or  be  imprisoned  for  a  time  not  exceeding 
two  years,  or  both,  in  the  discretion  of  the  court." 

The  indictment  in  the  first  count  alleges  that  the  steam- 
ship Alice  arrived  at  the  port  of  New  York  on  November  2, 
1907,  from  Greece,  having  on  board  eighty  cases  of  cheese, 
consigned  to  one  Stamatopoulos;  that  the  said  cheese  was  un- 
loaded and  an  invoice  and  entry  thereof  filed  with  the  collector 
of  customs  of  the  port  of  New  York  by  the  said  Stamato- 
poulos; that  the  defendant  was  at  the  time  an  assistant 
weigher  of  the  United  States  in  the  customs  service  at  the 
port  of  New  York  and  engaged  in  the  performance  of  his  du- 
ties as  such  assistant  weigher;  that  it  was  his  duty  to  weigh 
accurately  the  said  cheese  and  make  return  thereof  to  the 
collector  of  customs,  and  upon  the  weight  so  returned  the 
said  entry  was  to  be  liquidated;  that  the  said  defendant  "did 
knowingly,  wilfully  and  unlawfully  make  and  attempt  to 
make  an  entry  of  imported  merchandise,  to  wit,  the  said 
eighty  cases  of  cheese,  by  means  of  a  false  and  fraudulent 
practice,  by  means  whereof  the  United  States  was  to  be  de- 
prived of  the  lawful  duties  or  a  portion  thereof  accruing  upon 
the  said  merchandise;"  that  he  did  knowingly,  wilfully  and 
imlawfully  return  the  net  weight  of  said  cheese  as  13,358 
pounds,  whereas  the  true  weight  thereof  and  the  weight  upon 
which  the  entry  should  have  been  liquidated  and  the  duties 
paid  was  17,577  pounds.  The  second  and  third  counts  con- 
tain the  same  statement  of  facts,  but  it  is  averred  in  the  one 
that  the  defendant  was  "guilty  of  a  wilful  act  and  omission, 
by  means  whereof  the  United  States  was  to  be  deprived  of 
the  lawful  duties, "  or  a  portion  thereof,  and  in  the  other  that 
he  imlawfully  made  and  attempted  to  make  the  entry  "by 
means  of  a  false  written  statement."    To  this  indictment  a 


28  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  216  U.  S. 

demurrer  was  filed  and  sustained,  the  court,  after  discussing 
several  matters,  saying: 

*'  But  it  is  apparent  from  the  allegations  of  the  indictment 
that  the  defendant  is  not  in  fact  any  of  the  persons  within  the 
contemplation  of  section  9  with  relation  to  these  particular 
importations,  and  cannot  be  considered  either  an  owner,  im- 
porter, consignee,  agent  or  other  person. 

''The  defendant  Mescall  was  not  making  or  attempting  to 
make  an  entry  of  these  goods.  According  to  the  charge  he 
was,  contrary  to  his  duty,  rendering  assistance  to  the  importer, 
who  was  the  'person'  making  the  entry." 

The  case  is  here  under  the  act  of  March  2,  1907,  34  Stat. 
1246,  which  authorizes  a  writ  of  error  "direct  to  the  Su- 
preme Court  of  the  United  States"  in  a  criminal  case  wherein 
there  has  been  a  decision  or  judgment  sustaining  a  demurrer 
to  an  indictment,  when  such  decision  or  judgment  is  based 
upon  the  invalidity  or  construction  of  a  statute  upon  which 
the  indictment  is  foimded. 

Mr.  Assistard  Attorney  General  Fowler  for  the  United  States : 
An  entry  of  goods  within  the  meaning  of  §  9  of  the  act  of 
July  24,  1897,  embraces  the  entire  transaction  from  the  time 
the  vessel  enters  port  until  the  importer  obtains  an  entrance 
of  the  goods  into  the  body  of  merchandise  in  the  United 
States;  United  States  v.  Baker,  24  Fed.  Cas.  953;  United  States 
V.  Cargo  of  Sugar,  25  Fed.  Gas.  288;  United  States  v.  Legge, 
105  Fed.  Rep.  930;  and  every  person  performing  any  ma- 
terial act  in  accomplishing  that  purpose  and  violating  the 
statute  in  any  particular  is  liable  to  prosecution  therefor. 

One  who  is  not  an  importer  is  not  excluded  from  prosecu- 
tion because  under  the  rule  of  ejusdem  generis  the  words 
"other  person"  exclude  those  not  of  the  class  of  importer. 
2  Lewis*  Suth.  Stat.  Const.,  2d  ed.,  p.  833;  26  Cyc.  610;  State 
V.  Corkins,  123  Missouri,  56,  67;  Bank  v.  Ripley,  161  Missouri, 
126,  131 ;  WiUis  v.  Mabon,  48  Minnesota,  140,  156;  WirUers  v. 
DuLuth,  82  Minnesota,  127;  Foster  v.  BUmrd,  18  Alabama,  687; 


UNITED  STATES  v.  MESCALL.  29 

215  TT.  S.  Argument  for  Defendant  in  Error. 

• 

Misck  V.  RusseUj  136  Illinois,  22,  25;  Wdlber  v.  Chicago,  148 
Illinois,  313;  MaxweU  v.  People,  158  Illinois,  248,  253;  Gil- 
lock  V.  People,  171  Illinois,  307;  Matthews  v.  Kimball,  7p 
Arkansas,  451,  463;  5to^  v.  Woodman,  26  Montana,  348,  353; 
Randolph  v.  Stote,  9  Texas,  521 ;  State  v.  Solomon,  33  Indiana, 
450;  Matter  o/  La  Socim  Francaise,  123  California,  525,  530; 
State  V.  HolTmn,  3  McCord  (So^  Car.),  306;  State  v.  WiUiaws, 
2  Strob.  (So.  Car.)  427;  TisdeZZ  v.  Combe,  7  A.  &  E.  788,  792, 
796;  Young  v.  Grattridge,  4  Q.  B.  Cases,  166;  /Zeg.  v.  Dovbh- 
day,  3  E.  &  E.  500. 

Mr.  George  F.  Hickey  for  defendant  in  error: 

Section  9  of  the  Customs  Administrative  Act  is  a  penal 
statute  and  should  be  construed  strictly.  United  States  v. 
Seventy-five  Bales  of  Tobacco,  147  Fed.  Rep.  127;  Andrews  v. 
United  States,  2  Story,  202;  United  States  v.  Wiliberger,  5 
Wheat.  76;  United  States  v.  Eighty-four  Boxes  of  Sugar,  7 
Pet.  453;  Sutherland  on  Stat.  Const.,  §  353. 

In  expounding  a  penal  statute  the  court  will  not  extend  it 
beyond  the  plain  meaning  of  its  words.  United  States  v. 
Morris,  14  Pet.  464. 

Such  a  statute  should  be  construed  according  to  the  mani- 
fest import  of  the  words. 

If  the  statute  is  ambiguous,  the  construction  adopted 
should  be  that  most  favorable  to  the  accused.  The  Schooner 
Enterprise,  1  Paine,  32. 

Under  §  9  indictments  may  not  be  brought  against  others 
than  owners,  importers,  consignees,  agents  or  other  persons 
of  the  same  class. 

The  entry  contemplated  undoubtedly  is  the  entry  origi- 
nally made  by  the  importer,  or  some  one  on  his  behalf,  as 
required  by  the  rules  and  regulations  of  the  customs  service. 
Thi^  was  the  entry  alluded  to  in  the  act  of  June  22,  1874,  §  21, 
18  Stat.  190,  and  it  was  the  entry  provided  for,  regulated  and 
defined  by  §§  2785-2790,  Rev.  Stat.  United  States  v.  Seiden- 
berg,  17  Fed.  Rep.  227. 


30  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  Error.  215  U.  S. 

No  one  but  the  importer  or  some  one  representing  him, 
has  a  right  to  enter  goods  at  the  custom  house.  Harris  v. 
Dmnie,  3  Pet.  292;  United  States  v.  One  SUk  Rug,  158  Fed. 
Rep.  974;  United  States  v.  Ninety-nine  Diamonds,  132  Fed. 
Rep.  579;  139  Fed.  Rep.  961. 

It  seems  to  us  that  the  principal  dispute  that  can  arise  in 
the  case  at  bar  is  as  to  the  meaning  of  the  words  "or  other 
person." 

The  decision  in  the  case  that  the  words  "or  other  per- 
son" mean  some  one  of  the  same  general  class  as  those  de- 
scribed by  the  preceding  words,  seems  to  be  correct.  It  is 
certainly  supported  by  the  great  weight  of  authorities. 
United  States  v.  l,lSOi  Pounds  of  Celluloid,  82  Fed.  Rep. 
627. 

The  words  "or  other  person"  cannot  be  construed  to  mean 
"or  other  person  whosoever." 

For  cases  in  support  of  this  rule  of  construction,  known  as 
Lord  Tenderden's  Rule,  see  21  American  &  Eng.  Ency.  of 
Law,  title  "Other,"  1012;  In  re  Davidson,  4  Fed.  Rep.  509; 
Crystal  Spring  D,  Co,  v.  Cox,  49  Fed.  Rep.  555;  Newport  News 
Co.  V.  United  States,  61  Fed.  Rep.  488;  Crowther  v.  Fidelity 
Ins.  Co.,  85  Fed.  Rep.  41;  Alabama  v.  Montague,  117  U.  S. 
602;  /Stote  V.  McGarry,  21  Wisconsin,  502.  Sedgwick  on  Const, 
of  Stat.  361,  states  the  rule  as  follows : 

"  Where  general  words  follow  particular  words,  the  rule  is 
to  construe  the  former  as  applicable  to  the  persons  or  things 
particularly  mentioned." 

The  rule  that  general  words  will  be  restrained  to  things  of 
the  same  kind  with  those  particularized,  has  been  applied  in 
numerous  cases.  East  Oakland  v.  Skinner,  94  U.  S.  255; 
White  V.  Ivey,  34  Georgia,  186;  Mclntyre  v.  Ingraham,  35 
Mississippi,  25;  Bucher  v.  Commonwealth,  103  Pa.  St.  528; 
Matter  of  Hermance,  71  N.  Y.  481;  Renick  v.  Boyd,  99  Pa.  St. 
555;  People  v.  N.  Y.  R.  Co.,  84  N.  Y.  565;  Sullivan's  Appeal, 
77  Pa.  St.  107;  People  v.  Richards,  108  N.  Y.  137;  Sutheriand 
on  Stat.  Const.,  §§  268,  277. 


UNITED  STATES  v.  MESCALL.  31 

215  U.  S.  Opinion  of  the  Court. 

Mr.  Justice  Brewer,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

It  appears  that  the  trial  court  sustained  the  demurrer  on 
the  ground  that,  as  to  the  offense  charged,  the  statute,  prop- 
erly construed,  does  not  include  the  defendant.  The  case 
is,  therefore,  one  which  may  be  brought  to  this  court.  United 
States  V.  KeiteL,  211  U.  S.  370.  But  our  inquiry  is  limited  to 
the  particular  question  decided  by  the  court  below,    /d.  398. 

Counsel  for  defendant  invokes  what  is  sometimes  known 
as  Lord  Tenderden's  Rule,  that  where  particular  words  of 
description  are  followed  by  general  terms  the  latter  will  be 
regarded  as  referring  to  things  of  a  like  class  with  those  par- 
ticularly described — ejusdem  generis.  The  particular  words 
of  description,  it  is  urged,  are  "owner,  importer,  consignee, 
agent."  The  general  term  is  "other  person,''  and  should  be 
read  as  referring  to  some  one  similar  to  those  named,  whereas 
the  defendant  was  not  owner,  importer,  consignee,  or  agent 
or  of  like  class  with  either.  He  was  not  making  or  attempt- 
ing to  make  an  entry.  He  represented  the  Government,  and, 
contrary  to  his  duties,  was  rendering  assistance  to  the  con- 
signee who  was  making  the  entry.  But,  as  said  in  National 
Bank  of  Commerce  v.  Ripley ^  161  Missouri,  126,  132,  in  refer- 
ence to  the  rule: 

"But  this  is  only  a  rule  of  construction  to  aid  us  in  ar- 
riving at  the  real  legislative  intent.  It  is  not  a  cast-iron  rule, 
it  does  not  override  all  other  rules  of  construction,  and  it 
is  never  applied  to  defeat  the  real  purpose  of  the  statute, 
as  that  purpose  may  be  gathered  from  the  whole  instru- 
ment. .  .  .  Whilst  it  is  aimed  to  preserve  a  meaning  for  the 
particular  words,  it  is  not  intended  to  render  meaningless 
the  general  words.  Therefore,  where  the  particular  words 
exhaust  the  class,  the  general  words  must  be  construed  as 
embracing  something  outside  of  that  class.  If  the  particular 
words  exhaust  the  germs  there  is  nothing  ejusdem  generis  left, 
and  in  such  case  we  must  give  the  general  words  a  meaning 


32  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

outside  of  the  class  indicated  by  the  particular  words  or  we 
must  say  that  they  are  meaningless,  and  thereby  sacrifice 
the  general  to  preserve  the  particular  words.  In  that  case 
the  rule  would  defeat  its  own  purpose." 

See  also  GKUcock  v.  The  People,  171  Illinois,  307,  and  the 
cases  cited  in  the  opinion;  Winters  v.  Dvluth,  82  Minnesota, 
127;  Matthews  v.  KimbaU,  70  Arkansas,  451,  462.  Now  the 
party  who  makes  an  entry,  using  the  term  "entry"  in  its 
narrower  sense,  is  the  owner,  importer,  consignee  or  agent, 
and  it  must  be  used  in  that  sense  to  give  any  force  to  the 
argument  of  counsel  for  defendant,  but  used  in  that  sense  the 
term  "other  person"  becomes  surplusage.  In  §  1  of  chap.  76, 
Laws  of  1863,  12  Stat.  738,  is  found  a  provision  of  like  char- 
acter to  that  in  the  first  part  of  the  section  under  which  this 
indictment  was  found,  but  the  language  of  the  description 
there  is  "owner,  consignee  or  agent."  This  was  changed  by 
§  12,  chap.  391,  Laws  1874,  18  Stat.  188,  to  read  "owner,  im- 
porter, consignee,  agent,  or  other  person,"  and  that  descrip- 
tion has  been  continued  in  subsequent  legislation.  Evidently 
the  addition  in  1874  of  the  phrase  "  other  person  "  was  intended 
to  include  persons  having  a  different  relation  to  the  importa- 
tion than  the  owner,  importer,  consignee  or  agent.  Congress 
was  broadening  the  scope  of  the  legislation  and  meaning  to 
reach  other  persons  having  something  to  do  in  respect  to  the 
entry  beyond  that  which  was  done  by  the  owner,  importer, 
consignee  or  agent,  or  else  the  term  "other  person"  was  a 
meaningless  addition.  Now  the  defendant  was  a  person, 
other  than  the  owner,  importer,  consignee  or  agent,  by  whose 
act  the  United  States  was  deprived  of  a  portion  of  its  lawful 
duties.  His  act  comes  within  the  letter  of  the  statute  as  well 
as  within  its  purpose,  and  the  intent  of  Congress  in  the  leg- 
islation is  the  ultimate  matter  to  be  determined. 

The  fact  that  he  could  not  be  punished  in  all  respects  as 
fully  as  the  owner,  in  that  he  had  no  goods  to  be  forfeited,  is 
immaterial.  United  States  v.  Union  Supply  Company,  de- 
cided this  day,  post,  p.  50. 


WATERMAN  v,  CANAl^LOUISIANA  BANK  CO.     33 
215  U.  S.  Syllabus. 

We  are  of  opinion,  therefore,  that  the  trial  court  erred  in 
sustaining  the  demurrer.  The  judgment  is  reversed  and  the 
case  remanded  for  further  proceedings. 


••» 


WATERMAN  v,  THE  CANAI^LOUISIANA  BANK  AND 

TRUST  COMPANY,  EXECUTOR. 

APPEAL  FROM  THE  CIRCUIT  COURT   OF  THE   UNITED  STATES 
FOR  THE   EASTERN   DISTRICT  OF  LOUISIANA. 

No.  306.    Submitted  February  26,  1909.— Decided  November  8,  1909. 

The  equity  jurisdiction  of  the  Federal  courts  is  derived  from  the 
Federal  Constitution  and  statutes  and  is  like  unto  that  of  the  High 
Court  of  Chancery  in  England  at  the  time  of  the  adoption  of  the 
Judiciary  Act  of  1789;  it  is  not  subject  to  limitations  or  restraints  by 
state  legislation  giving  jurisdiction  to  state  courts  over  similar  mat- 
ters. 

While  Federal  courts  cannot  seize  and  control  property  which  is  in  the 
possession  of  the  state  courts  and  have  no  jurisdiction  of  a  purely 
probate  character,  they  can,  as  courts  of  chancery,  exercise  jurisdic- 
tion, where  proper  diversity  of  citizenship  exists,  in  favor  of  creditors, 
legatees,  and  heirs,  to  establish  their  claims  and  have  a  proper  execu- 
tion of  the  trust  as  to  them. 

Although  complainant  in  this  case  asks  in  some  of  her  prayers  for  relief 
which  is  beyond  the  jurisdiction  of  the  court  as  being  of  a  purely 
probate  character  if  the  allegations  of  the  bill  support  them  the  court 
may  grant  other  prayers  for  relief  which  are  within  its  jurisdiction, 
and,  as  a  court  of  equity,  shape  its  decree  according  to  the  equity  of 
the  case. 

Where  the  bill  does  not  seek  to  set  aside  the  probate  of  a  will  or  inter- 
fere with  the  possession  of  the  probate  court,  the  Federal  court  of 
equity,  in  a  case  where  diverse  citizenship  exists,  may  determine  as 
between  the  parties  before  the  court  their  interests  in  the  estate  and 
such  decree  will  be  binding  upon,  and  may  be  enforced  against,  the 
executor. 

It  will  be  assumed  that  the  state  probate  court  will  respect  the  decree 

VOL.  ccxv — 3 


34  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

of  the  Federal  court  having  jurisdiction  settling  the  rights  of  parties 
in  an  estate,  and  the  denial  of  effect  of  such  a  decree  presents  a  claim 
of  Federal  right  which  can  be  protected  by  this  court. 

While  a  Federal  court  of  equity  cannot,  either  under  the  forty-seventh 
rule  in  equity  or  general  principles  of  equity,  proceed  to  adjudication 
in  the  absence  of  indispensable  parties,  if  it  can  do  justice  to  the  par- 
ties before  it  without  injury  to  absent  persons  it  will  do  so  and  shape 
the  decree  so  as  to  preserve  the  rights  of  those  actually  before  the 
court,  without  prejudice  to  the  rights  of  the  absentees. 

In  this  case  the  absent  party  was  not  of  the  same  State  as  complainant 
and  had  no  interest  in  common  with  complainant  and  while  a  proper, 
was  not  an  indispensable  party,  as  his  interests  were  separate  and 
could  be  protected  by  retention  of  his  legacy  by  the  executors  sub- 
ject to  adjudication  in  another  suit. 

The  facts,  which  involved  the  jurisdiction  of  the  Circuit 
Court,  are  stated  in  the  opinion. 

Mr.  E.  Howard  M^Caleb,  and  Mr.  E.  Hovxird  M^Caleb,  Jr., 
for  appellant: 

As  to  the  jurisdiction  of  the  Federal  court : 

Any  creditor,  heir  or  legatee  who  is  a  citizen  of  another 
State  has  the  right  to  institute  his  suit  in  the  Federal  court 
against  executors  and  administrators  and  all  other  parties 
interested,  who  are  citizens  of  the  same  State  as  decedent,  to 
determine  the  validity  and  extent  of  his  rights  and  claims  in 
the  property  of  the  estate;  nor  is  he  deprived  of  his  original 
right  to  maintain  and  to  try  his  suit  in  the  Federal  court  by 
his  failure  to  present  his  claim  to  the  state  court  as  provided 
by  the  administration  statutes  of  the  State.  Here  are  a  few 
of  the  authorities:  Suydam  v.  Broadnax,  14  Pet.  67;  Bank  v. 
Vaiden,  18  How.  503;  Borer  v.  Chapman,  119  U.  S.  587,  588, 
589;  Payne  v.  Hook,  7  Wall.  425,  430;  Lawrence  v.  Neilson, 
143  U.  S.  215,  224;  Hayes  v.  PraU,  147  U.  S.  557,  570;  Hess  v. 
Reynolds,  113  U.  S.  73;  Hyde  v.  SUme,  20  How.  170;  Byers  v. 
McAvley,  149  U.  S.  608;  Y(mley  v.  Lavender,  21  Wall.  276; 
Green  v.  Creighton,    23  How.  90. 

To  sustain  appellees'  contention  that  the  state  court,  hav- 


WATERMAN  v.  CANAIr-LOUISIANA  BANK  CO.     35 
215  U.  S.  Argument  for  Appellant. 

ing  acqidred  jurisdiction  over  the  succession,  is  alone  com- 
petent to  entertain  and  determine  every  issue  which  may  arise 
in  the  progress  of  the  cause,  whether  it  be  as  to  the  construc- 
tion of  the  will,  the  rights  of  heirs  and  legatees  to  the  estate, 
and  the  claims  of  creditor  which  may  be  asserted  against  it, 
whether  such  parties  be  citizens  of  other  States  or  not,  imtil 
the  administration  is  terminated,  the  fimds  distributed  and 
the  executor  discharged,  would  be  to  deny  the  judicial  power 
of  the  United  States  conferred  by  the  Constitution  as  extend- 
ing over  *' controversies  between  citizens  of  different  States" 
and  force  such  citizens  into  the  state  courts  in  order  to  have 
their  complaints  heard.  This  is  answered  by  Buck  v.  Col- 
bath,  3  Wall.  334,  347;  Watson  v.  Jones,  13  Wall.  679. 

FarreU  v.  O'Brien,  199  U.  S.  ^,  is  claimed  to  be  decisive 
against  the  Federal  jurisdiction  over  this  Ijjll,  but  it  can  be 
distinguished  as  in  that  case  the  only  question  was  as  to  the 
power  of  the  Circuit  Court  to  annul  a  will  admitted  to  probate. 
It  was  held  that,  where  the  laws  of  a  State  afforded  a  remedy 
by  contest  in  proceedings  supplementary  to  the  origmal  pro- 
bate proceedings,  such  a  contest  was  not  inter  partes,  and 
hence  not  within  the  designation  of  "a  suit  at  law  or  in  eq- 
uity." It  was  further  held  that,  where  the  construction  and 
effect  of  the  will  is  wholly  subordinate  to  the  sole  issue  of 
probate.  Federal  jurisdiction  did  not  attach  imder  the  rule 
"that  no  instrument  can  be  effective  as  a  will,  no  rights  in 
relation  to  it  can  arise  imtil  preliminary  probate  has  been 
first  made."  Ellis  v.  Davis,  109  U.  S.  485.  Bijt  here  there  is 
no  contest  over  the  existence  or  non-existence  of  the  will, 
and  sucli  a  question  is,  therefore,  a  moot  one.  In  Louisiana, 
an  action  to  set  aside  a  will  already  admitted  to  probate  is 
strictly  and  purely  an  independent  action  in  nullity  between 
parties.  Unlike  the  Washington  statutes,  involved  in  Far- 
reU V.  O'Brien,  the  judgment  setting  aside  the  will  only  binds 
the  parties,  inures  only  to  the  benefit  of  the  particular  con- 
testant, and  is  not  operative  as  to  the  whole  world.  EUis  v. 
Dams,  109  U.  S.  485;  Gaines  v.  Fuentes,  92  U.  S.  10.    As  to 

0 


36  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

those  not  parties,  the  judgment  of  probate  stiU  stands  pnma 
facie  valid.  Stuxession  of  Barker,  10  La,  Ann.  28;  Campion  v. 
Prescott,  12  Rob.  (La.)  56;  IngersoU  v.  Coram,  211  U.  S.  335; 
Garzot  v.  DeRubio,  209  U.  S.  283,  can  also  be  distinguished. 

The  modes  of  the  action  in  nullity  may  be  various,  but 
essentially  and  in  its  nature  it  is  one  inter  partes,  and  if  the 
cause  of  nullity  of  a  judgment  probating  a  will  is  not  one  of 
form,  but  one  of  substance,  relating  to  the  merits,  then  the 
courts  of  the  United  States  have  jurisdiction  where  diversity 
of  citizenship  exists  and  state  rules  on  the  subject  cannot 
deprive  them  of  it.  Barrow  v.  Hunton,  99  U.  S.  80,  85;  Ar- 
rowsmith  v.  Gleason,  129  U.  S.  86,  98;  Johnson  v.  Waters,  111 
U.  S.  640,  667.  It  is,  however,  out  of  place  to  pursue  this 
matter  at  length,  since  there  is  nothing  in  the  case  that  seeks 
to  set  aside  the  probate  of  the  will.  The  sole  question  is :  Have 
the  Federal  courts  jurisdiction  to  establish  a  claim  or  right 
against  and  into  an  estate  where  the  parties  are,  on  one  side 
citizens  of  one  State  and  on  the  other  citizens  of  another 
State?  The  long  line  of  jurisprudence  of  this  court  remains 
unbroken.  The  question  has  been  answered  in  the  affirma- 
tive. 

As  to  the  indispensability  of  parties : 

That  the  right  of  action  for  the  establishment  of  his  claim, 
as  well  as  his  interest  by  an  heir  is  separable  from  that  of  his 
co-heirs  is  the  law  of  Louisiana.  Tugwell  v.  Tugwell,  32  La. 
Ann.  848;  Denbridge  v.  Crawley,  43  La.  Ann.  504;  Glasscock 
V.  Clark,  33  La.  Ann.  584;  Bumey  Heirs  v.  Ludding,  41 
La.  Ann.  627,  632;  Denegre  v.  Denegre,  33  La.  Ann.  689; 
Skipwith  V.  Glathary,  34  La.  Ann.  28;  Arts.  113  and  120,  Code 
of  Practice  of  Louisiana. 

Even  if  Louisiana  jurisprudence  cannot  be  invoked  to  con- 
trol the  jurisdiction  of  the  Federal  court,  sitting  in  equity, 
nevertheless  it  should  control  the  question  upon  which  equity 
jurisdiction  as  to  parties  is  founded  concerning  the  character 
of  an  heir's  interest  in  the  estate  as  separate  from  that  of  his 
co-heir.    At  least,  it  is  persuasive,  since  it  fully  accords  with 


WATERMAN  v.  CANAL-LOUISIANA  BANK  CO.    37 
216  U.  S.  Argument  for  Appellees. 

equity  jurisdiction  as  to  parties.  Payne  v.  Hook,  7  Wall.  425, 
433;  Story's  Equity  Pleading,  10th  ed.,  §§  89,  207a,  212. 

The  strict  rule  as  to  parties  will  yield  if  the  court  can  pro- 
ceed to  decree  and  do  justice  to  the  parties  before  it  without 
injury  to  the  absentees.  Cooper's  Eq.  PI.  35;  West  v.  Randall 
2  Massachusetts,  181 .  In  Minnesota  v.  Northern  Securities  Co,, 
184  U.  S.  199,  235,  this  court  regarded  the  absent  parties  as 
absolutely  indispensable  to  the  main  cause  of  action,  which  is 
not  the  case  here.  See  Payne  v.  Hook,  7  Wall.  425;  Van 
BokeUen  v.  Cook,  Fed.  Cas.  No.  16,831 ;  Elmendorf  v.  Taylor, 
10  Wheat.  167;  Delaware  County  v.  Diebold  Safe  Co.,  133  U.  S. 
473. 

Complainant  may  be  required  to  waive  her  allegation  as 
to  Davis  and  still  the  court  has  jurisdiction.  Northey  v. 
Northey,  2  Arkansas,. 77;  S.  C,  26  Eng,  Reprint,  447;  WH- 
liams  V.  Williams,  9  Mod.  299;  S.  C,  88  Eng.  Reprint,  465. 

Reservation  of  Davis'  rights  need  not  be  made  by  amend- 
ment; the  court  may  modify  the  decree  prayed  for  to  meet 
it.    Harding  v.  Handy,  11  Wheat.  103,  132. 

Mr.  Wm.  C.  Dufour,  Mr.  Edgar  H.  Farrar,  Mr.  Jas.  Mo- 
Connell,  Mr.  Chas.  E.  Fenner,  Mr.  Geo.  C.  Walshe,  Mr.  Geo.  H. 
Ternherry,  Mr.  H.  Garland  Dupre,  Mr.  S.  McC.  Lawrason, 
Mr.  Walter  Guion,  Mr.  Victor  Leovy,  Mr.  Pierre  Crdbites  and 
Mr.  H.  Generes  Dufour  for  appellees : 

No  Federal  court  has  jurisdiction  to  remove  an  entire  suc- 
cession administration  from  a  state  court,  as  the  bill  in  this 
case  proposes  to  do.  The  state  court  acted  first,  and,  imder 
the  law  of  Louisiana,  has  the  entire  estate  in  its  possession 
and  its  admmistration,  and  it  is  entitled  to  proceed  with  that 
administration  until  it  shall  be  completed.  If  complainant's 
contention  is  correct,  a  non-resident  creditor  of  an  estate  in 
the  hands  of  a  receiver  appointed  by  a  state  court  can  file  a 
suit  in  a  Federal  court  against  the  state  court  receiver,  and 
request  the  Federal  court,  not  only  to  pass  upon  the  litigated 
claim,  but  further  to  fix  the  costs  and  expenses  of  the  state 


38  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

court  receivership,  to  determine  who  were  the  creditors  of  the 
estate,  to  settle  the  amount  for  distribution  and  the  rank 
and  order  in  which  the  creditors  should  be  paid,  and  to  direct 
the  receiver  to  account  to  the  Federal  court  and  not  to  the 
state  court. 

No  precedent  for  this  remarkable  action  can  be  found. 
See  Farreil  v.  O'Brien,  199  U.  S.  89,  which  distinguishes 
Byers  v.  McAvley,  149  U.  S.  608;  Lawrence  v.  Nelson,  143 
U.  S.  223;  Hayes  v.  Pratt,  147  U.  S.  570. 

Under  Arts.  133,  134  of  the  constitution  of  Louisiana  and 
§  924  of  the  Code  of  Peace  of  that  State,  Denegre  v.  Denegre, 
33  La.  Ann.  689;  Succession  ofBumside,  34  La.  Ann.  728. 

See  Westfeldt  v.  Nor.  Car.  Mining  Co.,  166  Fed.  Rep.  706; 
Prentis  v.  Atlantic  Coast  Line,  211  U.  S.  210,  as  to  disinclina- 
tion of  this  court  to  permit  Federal  coiuts  to  interfere  with 
proceedings  in  state  courts  and  to  withdraw  questions  prop- 
erly and  necessarily  involved  in  proceedings  in  the  state  courts. 

On  the  indispensability  of  parties : 

Under  Shields  v.  Barrow,  17  How.  130;  Garzot  v.  DeRubio, 
209  U.  S.  283;  Minnesota  v.  Northern  Securities  Co.,  184  U.  S. 
237;  47th  Rule  in  Equity,  Arts.  967, 1014, 1017,  Code  of  Piac- 
tice  of  Louisiana,  Davis  is  an  absolutely  indispensable  party 
and  the  bill  cannot  be  maintained  in  any  court  of  equity 
without  him. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

This  case  presents  a  question  of  jurisdiction  concerning  the 
right  of  the  United  States  Circuit  Court  to  entertain  a  certain 
bill  in  equity.  Frances  E.  Waterman,  wife  of  Charles  A.  Crane, 
a  resident  of  Chicago  in  the  State  of  Illinois,  and  a  citizen  of 
that  State,  joined  by  her  husband,  also  a  citizen  of  Illinois, 
brought  the  suit  in  the  United  States  Circuit  Court  against  the 
Canal-Louisiana  Bank  and  Trust  Company,  executor  of  the 
last  will  and  testament  of  Caroline  Stannard  Tilton,  deceased,  a 
citizen  of  the  State  of  Louisiana  and  an  inhabitant  of  the  East- 


WATERMAN  v.  CANAI^-LOUISIANA  BANK  CO.      39 
215  TJ.  S.  Opinion  of  the  Court. 

em  District  of  Louisiana^  and  also  against  the  Charity  Hospi- 
tal of  New  Orleans,  St.  Ann's  Asylum,  Protestant  Episcopal 
Orphan  Asylum,  Home  for  Incurables,  Christian  Woman's 
Elxchange,  State  Insane  Asylum  of  Jackson,  Louisiana;  City 
of  New  Orleans  and  Louisiana  Retreat,  conducted  by  the  So- 
ciety of  the  Daughters  of  St.  Vincent  de  Paul,  all  and  each  of 
them  being  institutions  established  under  the  laws  of  Louis- 
iana and  citizens  of  the  State  of  Louisiana,  and  inhabitants  of 
the  Eastern  District  of  Louisiana;  also  against  Robert  Water- 
man and  Frederick  Waterman,  citizens  of  the  State  of  Louis- 
iana and  inhabitants  of  the  Eastern  District  thereof.  The 
bill  set  forth  in  substance:  That  Caroline  Stannard  Tilton, 
widow  of  Frederick  W.  Tilton,  late  of  the  city  of  New  Orleans, 
duly  made  and  published  her  last  will  and  testament  and  cod- 
icils thereunto  annexed,  and  by  said  will  and  codicils  said 
Caroline  Stannard  Tilton  gave  and  bequeathed  to  Robert 
Waterman  the  sum  of  $3^000;  to  the  said  Robert  Waterman 
and  his  wife,  fifteen  premium  bonds ;  to  Frederick  Waterman 
$3,000;  to  Frederick  Tilton  Davis,  $1,000,  and  the  whole  series 
of  No.  5,963  premium  bonds.  That  the  said  Caroline  Stannard 
Tilton  departed  this  life  on  or  about  the  sixth  of  July,  1908; 
that  the  Canal-Louisiana  Bank  and  Trust  Company,  executor 
in  said  will  named,  duly  proved  the  same  in  the  court  of  pro- 
bate jurisdiction  in  and  for  the  Parish  of  Orleans  in  the  State 
of  Louisiana,  and  undertook  the  executorship  thereof,  and  pos- 
sessed itself  of  the  personal  estate  and  effects  of  the  said  testa- 
trix to  a  very  considerable  amount,  and  more  than  sufficient 
to  discharge  her  just  debts,  funeral  expenses  and  legacies. 

The  complainant  further  avers  that  she  is  the  sole  surviving 
niece,  and  that  Robert  and  Frederick  Waterman  and  Freder- 
ick Tilton  Davis  are  the  sole  surviving  nephews  of  said  Caro- 
line Stannard  Tilton,  and  that  there  are  no  other  persons 
within  the  nearest  degree  of  kinship  of  the  said  testatrix;  and 
that  the  said  Frederick  Tilton  Davis  resides  in  the  State  of 
Alabama,  outside  of  the  court's  jurisdiction. 

She  avers  that  the  said  Robert  Waterman,  Frederick  Water- 


40  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  IT.  S. 

man  and  Frederick  Tilton  Davis,  legatees  in  said  will,  became 
entitled  to  have  and  receive  their  said  respective  legacies,  and 
did  receive  the  same,  and  accordingly,  by  receiving  said  be- 
quests have  renounced  the  succession  of  said  Caroline  Stannard 
Tilton,  deceased,  and  by  taking  said  legacies  have  renounced 
all  their  rights  as  heirs  at  law,  and  are  estopped  and  debarred 
from  claiming  any  portion  of  the  estate  undisposed  of,  because 
of  certain  provisions  of  the  will,  which  are  set  forth  in  the  bill. 

It  is  further  averred  by  the  complainant  that  by  reason  of 
the  renunciation  and  estoppel  of  said  legatees  the  complainant 
remains  the  sole  heir  at  law  of  Caroline  Stannard  Tilton,  and,  as 
such,  is  entitled  to  the  shares  which  would  have  gone  to  Fred- 
erick and  Robert  Waterman  and  Frederick  Tilton  Davis,  of 
the  same  degree  and  collateral  line,  by  right  of  accretioxi. 

She  further  avers  that  said  will  bequeathed  to  the  Charity 
Hospital  of  New  Orleans,  $2,000;  St.  Ann's  Asylum,  $2,000; 
Protestant  Episcopal  Orphan  Asyluln,  $2,000;  Home  for  In- 
curables, $2,000;  Home  for  Insane,  $3,000,  and  to  the  Chris- 
tian Woman's  Exchange,  $1,000;  and  that  after  satisfaction  of 
the  foregoing  special  legacies  and  bequests,  and  after  pa3mient 
of  all  costs  and  expenses  of  settlement  of  the  estate,  if  any  re- 
mained thereof  undisposed  of,  the  testatrix  willed  and  directed 
that  such  residue  should  be  divided  between  the  beneficiaries 
of  the  charitable  bequests  heretofore  made  to  the  various  in- 
stitutions, the  divisions  to  be  made  jyro  rata  in  proportion  to 
the  amount  of  special  legacies  already  made  to  them,  respec- 
tively. She  avers  that  at  the  time  of  making  said  will,  and  at 
the  time  of  the  death  of  said  testatrix,  there  was  no  such  insti- 
tution or  corporation  in  existence  known  as  Home  for  Insane, 
nor  was  the  testatrix  capable  of  incorporating  any  such  insti- 
tution under  her  will;  and  that  said  special  legacy  for  $3,000, 
and  the  pro  rata  share  of  the  residue  remained  undisposed  of 
because  of  the  facts  stated,  and  thereby  the  sum  of  $3,000  and 
the  pro  rata  share  of  the  proportion  of  the  estate  undisposed  of 
devolved  upon  the  complainant  as  sole  legal  heir  and  next  of 
kin  to  said  Caroline  Stannard  Tilton.    And  it  was  averred  that 


WATERMAN  v.  CANAL-LOUISIANA  BANK  CO.       41 
215  U.  S.  Opinion  of  the  Court. 

the  Christian  Woman's  Exchange  was  not  entitled  to  share  in 
the  residue,  because  the  bequest  to  it  of  $1,000  was  not  a  chari- 
table bequest,  and  the  said  Christian  Woman's  Exchange  was 
not  one  of  the  institutions  mentioned  in  the  will  to  share  in 
the  residue. 

Complainant  states  that  the  insane  asylum  situated  at  Jack- 
son, Louisiana,  the  Louisiana  Retreat,  conducted  by  the  So- 
ciety of  the  Daughters  of  Charity  of  St.  Vincent  de  Paul,  and 
the  city  of  New  Orleans  claim  and  assert  their  right  to  take 
and  receive  the  amount  of  said  lapsed  and  caducous  legacies, 
asserting,  that  the  testatrix  intended  them  as  beneficiaries  of 
her  boimty,  and  as  particular  legacies  under  her  will,  instead 
of  the  Home  for  Insane.  And  the  plaintiff  denies,  for  reasons 
stated  in  the  bill,  that  either  of  them  is  entitled  to  receive  such 
legacies  intended  for  the  Home  for  Insane,  and  she  charges 
that  the  amount  falling  to  her  as  sole  legal  heir  and  next  of  kin, 
because  of  her  right  to  the  lapsed  legacies  bequeathed  to  the 
non-existing  Home  for  Insane's  share  in  the  residue,  together 
with  that  part  and  proportion  of  the  estate  accessory  and  ap- 
purtenant thereto,  exceeds  the  sum  of  $90,000,  which  she  is  en- 
titled to  out  of  the  estate.  She  charges  that  the  estate,  after 
payment  of  the  special  legacies,  charges  and  costs  of  adminis- 
tration, will  amoimt  to  more  than  a  residue  of  $350,000.  She 
charges  that  the  executor  refuses  to  do  or  make  any  satisfac- 
tion whatever  in  respect  to  her  just  demands,  and  the  complain- 
ant avers  that  she  has  no  sufficient  remedy  under  the  rules  of 
common  law,  and  must  resort  to  a  court  of  equity  for  ade- 
quate relief.    And  the  prayer  of  the  bill  is : 

'*  Wherefore,  your  oratrix  prays  that  this  court  do  order,  ad- 
judge and  decree  (1)  that  the  particular  legacy  contained  in 
the  last  will  and  testament  of  Caroline  Stannard  Tilton,  de- 
ceased, to  so-called  'Home  for  Insane,*  and  also  the  interest  of 
said  legatee  in  the  residue  or  residuum  of  said  testatrix's  estate, 
be  declared  caducous,  to  have  lapsed,  because  of  the  uncer- 
tainty and  non-existence  of  said  legatee;  (2)  that  it  be  fur- 
ther declared  and  decreed  that  Robert  Waterman  and  Fred- 


42  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

erick  Waterman  have  renounced  and  abandoned  all  their  right, 
title  and  interest  as  heirs  of  said  Caroline  Stannard  Tilton, 
deceased,  in  the  said  lapsed  and  caducous  legacy  made  in  fa- 
vor of  the  so-called  '  Home  for  Insane ; '  (3)  that  it  be  further 
adjudged  and  decreed  that  your  oratrix,  as  the  nearest  sole 
heir  and  next  of  kin  of  said  Caroline  Stannard  Tilton,  deceased, 
capable  of  inheriting,  is  alone  entitled  to  the  amount  of  the 
caducous  and  lapsed  special  legacy  bequeathed  to  the  said  so- 
called  '  Home  for  Insane,'  for  the  sum  of  three  thousand  dollars 
($3,000.00),  and  to  the  proportionate  share  of  said  non-existing 
and  uncertain  legatee  in  the  residue  of  the  estate  of  said  Caro- 
line Stannard  Tilton,  and  that  the  Canal-Louisiana  Bank  & 
Trust  Company,  executor  of  said  deceased,  Caroline  Stannard 
Tilton,  be  condemned  to  pay  over  and  deUver  to  your  oratrix 
the  whole  amount  of  said  caducous,  special  legacy,  together 
with  the  proportionate  share  and  interest  of  said  so-called 
*Home  for  Insane'  in  the  residue  of  the  estate  of  said  de- 
ceased remaining  after  the  payment  of  the  particular  legacies 
and  the  costs  of  administration  of  her  estate,  and  for  such  fur- 
ther sum  as  the  court  may  find  to  be  justly  due  and  owing  unto 
your  oratrix  as  legal  heir  and  next  of  kin  of  the  said  Caroline 
Stannard  Tilton ;  (4)  and  that  it  be  further  ordered  and  decreed 
that  the  Christian  Woman's  Exchange  is  not  a  charitable  in- 
stitution or  entitled  as  such  under  said  will  to  participate  or  re- 
ceive any  share  or  portion  of  the  residue  of  the  estate  of  said 
deceased ;  (5)  and  that  an  account  be  taken  of  the  personal  es- 
tate and  effects  of  the  said  testatrix  coming  to  the  hands  of 
the  said  executor,  or  of  any  person  or  persons  by  its  order  or 
for  its  use,  and  also  of  the  said  testatrix's  fimeral  expenses, 
debts,  legacies  and  costs  of  administration,  and  especially 
showing  the  residue  remaining  in  the  hands  of  the  said  execu- 
tor after  making  the  aforesaid  deduction,  and  that  the  same 
may  be  applied  in  due  course  of  administration,  and  that  for 
these  purposes  proper  directions  may  be  given. 

**  And  your  oratrix  further  prays  for  all  general  and  equitable 
relief,  as  well  as  all  costs." 


WATERMAN  v.  CANAL-LOUISIANA  BANK  CO.     43 
215  U.  S.  Opinion  of  the  Court. 

From  an  early  period  in  the  history  of  this  court  cases  have 
arisen  requiring  a  consideration  and  determination  of  the  ju- 
risdiction of  the  courts  of  the  United  States  to  entertain  suits 
against  administrators  and  executors  for  the  purpose  of  es- 
tablishing claims  against  estates,  and  to  have  a  determination 
of  the  rights  of  persons  claiming  an  interest  therein.  And  this 
court  has  had  occasion  to  consider  how  far  the  jurisdiction  in 
equity  of  the  courts  of  the  United  States  in  such  matters  may 
be  aflfected  by  the  statutes  of  the  States  providing  for  courts 
of  probate  for  the  establishment  of  wills  and  the  settlement 
of  estates.  We  will  not  stop  to  analyze  or  review  in  detail  all 
these  cases,  as  they  have  been  the  subject  of  frequent  and  re- 
cent consideration  in  this  court.  The  general  rule  to  be  de- 
duced from  them  is  that,  inasmuch  as  the  jurisdiction  of  the 
courts  of  the  United  States  is  derived  from  the  Federal  Con- 
stitution and  statutes,  that  in  so  far  as  controversies  between 
citizens  of  different  States  arise  which  are  within  the  es- 
tablished equity  jurisdiction  of  the  Federal  courts,  which  is 
like  unto  the  High  Court  of  Chancery  in  England  at  the  time 
of  the  adoption  of  the  Judiciary  Act  of  1789,  the  jurisdiction 
may  be  exercised,  and  is  not  subject  to  limitations  or  restraint 
by  state  legislation  establishing  courts  of  probate  and  giving 
them  jurisdiction  over  similar  matters.  This  court  has  uni- 
formly maintained  the  right  of  Federal  courts  of  chancery  to 
exercise  original  jurisdiction  (the  proper  diversity  of  citizen- 
ship existing)  in  favor  of  creditors,  legatees  and  heirs  to  es- 
tablish their  claims  and  have  a  proper  execution  of  the  trust  as 
to  them.  In  various  forms  these  principles  have  been  asserted 
in  the  following,  among  other  cases:  Suydam  v.  Broadnax,  14 
Pet.  67;  Hyde  et  d.  v.  Stone,  20  How.  170,  175;  Green's  Ad,  v. 
Creighton  et  oZ.,  23  How.  90;  Payne  v.  Hook,  7  Wall.  425;  Lav)- 
rence  v.  Nelson,  143  U.  S.  215;  Hayes  v.  PraU,  147  U.  S.  557, 
670;  Byers  v.  McAidey,  149  U.  S.  608;  Ingersoll  v.  Coram,  211 
U.  S.  335. 

The  rule  stated  in  many  cases  in  this  court  affirms  the  juris- 
diction of  the  Federal  courts  to  give  relief  of  the  nature  stated. 


44  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

notwithstanding  the  statutes  of  the  State  undertake  to  give  to 
state  probate  courts  exclusive  jurisdiction  over  all  matters 
concerning  the  settlement  of  accounts  of  executors  and  ad- 
ministrators in  the  distribution  of  estates.  This  rule  is  sub- 
ject to  certain  qualifications,  which  we  may  now  notice.  The 
courts  of  the  United  States,  while  they  may  exercise  the  juris- 
diction, and  may  make  decrees  binding  upon  the  parties,  can- 
not seize  and  control  the  property  which  is  in  the  possession  of 
the  state  court.  In  Byers  v.  McAuley,  supra,  the  rule  was 
thus  tersely  stated  by  Mr.  Justice  Brewer,  delivering  the  opin- 
ion of  the  court : 

''A  citizen  of  another  State  may  establish  a  debt  against 
the  estate.  Yonley  v.  Lavender,  21  Wall.  276;  Hess  v.  Reyn- 
olds, 113  U.  S.  73.  But  the  debt  thus  established  must  take 
its  place  and  share  of  the  estate  as  administered  by  the  pro- 
bate court;  and  it  cannot  be  enforced  by  process  directly 
against  the  property  of  the  decedent.  Yonley  v.  Lavender, 
supra.  In  like  manner  a  distributee,  citizen  of  another  State, 
may  establish  his  right  to  a  share  in  the  estate,  and  enforce 
such  adjudication  against  the  administrator  personally,  or  his 
sureties  {Payne  v.  Hook,  7  Wall.  425);  or  against  any  other 
parties  subject  to  liability  (Borer  v.  Chapman,  119  U.  S.  587), 
or  in  other  way  which  does  not  disturb  the  possession  of  the 
property  by  the  state  court.  (See  the  many  cases  heretofore 
cited.)" 

In  a  late  case,  where  the  subject  was  given  consideration  in 
this  court  {FarrtU  v.  O'Brien,  199  U.  S.  89)  while  the  rule  of 
the  earlier  cases  was  stated  and  their  binding  force  admitted, 
it  was  laid  down  that  the  Circuit  Court  of  the  United  States 
iH)uld  not  entertain  jurisdiction  of  a  bill  to  set  aside  the  pro- 
bate of  a  will  in  the  State  of  Washington,  because  by  the 
statutes  of  that  State  the  proceeding  was  one  purely  in  rem  and 
not  a  suit  inter  partrs,  sustainable  in  a  cinirt  of  equity.  That 
case  recognized  what  previous  cast^  had  held,  that  in  proceed- 
ings purely  of  a  probate  character  there  was  no  jurisdiction 
in  tin*  Federal  courts.    This  was  in  hannony  with  the  rule 


WATERMAN  v,  CANAL-LOUISIANA  BANK  CO.      46 
215  U.  S.  Opinion  of  the  Court. 

theretofore  laid  down  in  Byers  v.  McAvley,  supra,  in  which  it 
was  held  that  the  Federal  court  could  not  exercise  original 
jurisdiction  to  draw  to  itself  the  entire  settlement  of  the  es- 
tate of  the  decedent  and  the  accounts  of  administration,  or  the 
power  to  determine  all  claims  against  the  estate.  But  it  was 
there  decided  that  a  Circuit  Court  of  the  United  States  could 
entertain  jurisdiction  in  favor  of  citizens  of  other  States  to  de- 
termine and  award  by  decrees  binding  in  personam  their 
shares  in  the  estates. 

In  view  of  the  cases  cited,  and  the  rules  thus  established,  it 
is  evident  that  the  bill  in  this  case  goes  too  far  in  asking  to 
have  an  accounting  of  the  estate,  such  as  can  only  be  had  in 
the  probate  court  having  jurisdiction  of  the  matter;  for  it  is 
the  result  of  the  cases  that  in  so  far  as  the  probate  administra- 
tion of  the  estate  is  concerned  in  the  payment  of  debts,  and  the 
settlement  of  the  accounts  by  the  executor  or  administrator, 
the  jurisdiction  of  the  probate  court  may  not  be  interfered  with. 
It  is  also  true,  as  was  held  in  the  court  below  in  the  case  at 
bar,  that  the  prior  possession  of  the  state  probate  court  cannot 
be  interfered  with  by  the  decree  of  the  Federal  court.  Still,  we 
think  there  is  an  aspect  of  this  case  within  the  Federal  juri&- 
diction,  and  for  which  relief  may  be  granted  to  the  complain- 
ant, if  she  makes  out  the  allegations  of  her  bill  under  the  other 
prayers,  and  the  prayer  for  general  relief  therein  contained. 
Under  such  prayer  a  court  of  equity  will  shape  its  decree  ac- 
cording to  the  equity  of  the  case.  Waiden  v.  Bodley,  14  Pet. 
156,  164. 

The  complainant,  a  citizen  of  a  different  State,  brings  her 
bill  against  the  executor  and  certain  legatees  named,  who  are 
likewise  citizens  of  another  State,  and  are  all  citizens  of  Louis- 
iana, where  the  bill  was  filed,  except  one,  who  was  beyond  the 
jurisdiction  of  the  court,  and  for  the  reasons  stated  in  her  bill 
she  asks  to  have  her  interest  in  the  legacy  alleged  to  be  lapsed 
and  the  residuary  portion  of  the  estate  established. 

This  controversy  is  within  the  equity  jurisdiction  of  the 
courts  of  the  United  States  as  heretofore  recognized  in  this 


46  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

court,  and  such  jurisdiction  cannot  be  limited  or  in  anywise 
curtailed  by  state  legislation  as  to  its  own  courts.  The  com- 
plainant, it  is  to  be  noted,  does  not  seek  to  set  aside  the  pro- 
bate of  the  will  which  the  bill  alleges  was  duly  established  and 
admitted  to  probate  in  the  proper  court  of  the  State. 

The  United  States  Circuit  Court,  by  granting  this  relief, 
need  not  interfere  with  the  ordinary  settlement  of  the  estate, 
the  payment  of  the  debts  and  special  legacies,  and  the  deter- 
mination of  the  accounts  of  funds  in  the  hands  of  the  executor, 
but  it  may,  and  we  think  has  the  right  to  determine  as  between 
the  parties  before  the  court  the  interest  of  the  complainant  in 
the  alleged  lapsed  legacy  and  residuary  estate,  because  of  the 
facts  presented  in  the  bill.  The  decree  to  be  granted  cannot 
interfere  with  the  possession  of  the  estate  in  the  hands  of  the 
executor,  while  being  administered  in  the  probate  court,  but 
it  will  be  binding  upon  the  executor,  and  may  be  enforced 
against  it  personally.  If  the  Federal  court  finds  that  the  com- 
plainant is  entitled  to  the  alleged  lapsed  legacy  and  the  residue 
of  the  estate,  while  it  cannot  interfere  with  the  probate  court 
in  determining  the  amount  of  the  residue  arising  from  the  settle- 
ment of  the  estate  in  the  court  of  probate,  the  decree  can  find 
the  amount  of  the  residue,  as  determined  by  the  administra- 
tion in  the  probate  court  in  the  hands  of  the  executor,  to  be- 
long to  the  complainant,  and  to  be  held  in  trust  for  her,  thus 
binding  the  executor  personally,  as  was  the  case  in  Payne  v. 
Hook,  7  Wall.  425,  supray  and  IngersoU  v.  Corarrtj  211  U.  S.  335, 
supra. 

It  is  to  be  presumed  that  the  probate  court  will  respect  any 
adjudication  which  might  be  made  in  settling  the  rights  of 
parties  in  this  suit  in  the  Federal  court.  It  has  been  fre-^ 
quently  held  in  this  court  that  a  judgment  of  a  Federal  court 
awarding  property  or  rights,  when  set  up  in  a  state  court,  if 
its  effect  is  denied,  presents  a  claim  of  Federal  right  which  may 
be  protected  in  this  court. 

The  Circuit  Court  in  this  case  construed  the  bill,  in  view  of 
its  broad  prayer  for  relief,  as  one  which  undertook  to  take  the 


WATERMAN  v.  CANAL-LOUISIANA  BANK  GO.      47 
215  U.  S.  Opinion  of  the  Court. 

entire  settlement  of  the  estate  from  the  hands  of  the  probate 
court,  and  denied  the  jurisdiction  of  the  Circuit  Court  of  the 
United  States  in  the  premises.  We  are  of  opinion  that,  to  the 
extent  stated,  the  bill  set  up  a  valid  ground  for  relief,  and, 
while  all  that  it  asks  cannot  be  granted,  enough  was  stated  in 
it  to  make  a  case  within  the  jurisdiction  of  the  Federal  courts 
within  the  principles  we  have  stated. 

At  the  last  term  of  the  court  counsel  in  this  case  were  invited 
to  file,  on  or  before  the  first  day  of  the  present  term  of  court, 
briefs  upon  the  question  whether  Frederick  Tilton  Davis, 
averred  in  the  bill  to  be  a  resident  of  the  State  of  Alabama  and 
outside  of  the  jurisdiction  of  the  court,  is  an  indispensable 
party  to  the  suit,  and  in  his  absence  a  dismissal  of  the  cause  re- 
quired for  want  of  jurisdiction  in  the  court  to  proceed  without 
him.  These  briefs  have  been  filed  and  we  come  now  to  con- 
sider this  branch  of  the  case.  In  so  doing  it  is  essential  to  re- 
member that  the  complainant's  cause  of  action  is  primarily 
against  the  executor  of  the  estate  for  a  decree  against  it  con- 
cerning the  right  of  the  complainant  to  recover  because  of  the 
alleged  lapse  of  the  legacy  to  the  Home  for  the  Insane,  and  the 
consequent  increase  in  the  residuary  portion  of  the  estate  to  be 
distributed  to  the  heirs  of  Mrs.  Tilton  because  of  the  allega^ 
tions  contained  in  the  bill.  The  Watermans  and  Davis  are 
made  parties  to  the  bill,  and  asked  to  be  excluded  from  a  par- 
ticipation in  the  recovery  because  of  the  alleged  renunciation 
of  their  rights  in  the  succession  to  Mrs.  Tilton.  If  it  shall  be 
found  that  they  have  not  thus  renounced  their  interest,  and  a 
decree  be  rendered  in  complainant's  favor,  they  are  entitled  to 
participate  in  the  recovery.  They  have  no  interest  in  common, 
however,  with  the  complainant,  and  the  shares  of  the  com- 
plainant and  other  heirs  are  separate  and  distinct.  The  ques- 
tion is,  therefore,  Is  Davis  an  indispensable  party  to  this  suit, 
his  absence  creating  a  want  of  jurisdiction  in  the  Federal 
court  to  proceed  without  him? 

Section  737  of  the  Revised  Statutes  of  the  United  States 
provides : 


48  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

"  When  there  are  several  defendants  in  any  suit  at  law  or  in 
equity,  and  one  or  more  of  them  are  neither  inhabitants  of  nor 
found  within  the  district  in  which  the  suit  is  brought,  and  do 
not  volimtarily  appear,  the  court  may  entertain  jurisdiction, 
and  proceed  to  the  trial  and  adjudication  of  the  suit  between 
the  parties  who  are  properly  before  it;  but  the  judgment  or  de- 
cree rendered  therein  shall  not  conclude  or  prejudice  other 
parties  not  regularly  served  with  process  nor  voluntarily  ap- 
pearing to  answer/' 

To  the  same  effect  is  the  forty-seventh  equity  rule.  This 
statute  and  rule  permit  the  court  to  proceed  with  the  trial  and 
adjudication  of  the  suit,  as  between  parties  who  are  properly 
before  it,  and  preserves  the  rights  of  parties  not  voluntarily 
appearing,  providing  their  rights  are  not  prejudiced  by  the  de- 
cree to  be  rendered  in  the  case.  This  rule  has  been  said  to  be 
declaratory  of  the  already-established  equity  practice.  Shields 
v.  Barrow,  17  How.  130;  1  Street's  Federal  Equity  Practice, 
§533,  and  cases  there  cited.  This  rule  does  not  permit  a 
Federal  court  to  proceed  to  a  decree  in  that  class  of  cases  in 
which  there  is  an  absence  of  indispensable,  as  distinguished 
from  proper,  or  even  necessary  parties,  for  neither  the  absence 
of  formal,  or  such  as  are  commonly  termed  necessary  parties, 
will  defeat  the  jurisdiction  of  the  court ;  provided,  in  the  case 
of  necessary  parties,  their  interests  are  such  and  so  far  separable 
from  those  of  parties  before  the  court,  that  the  decree  can  be  so 
shaped  that  the  rights  of  those  actually  before  the  court  may 
be  determined  without  necessarily  affecting  other  persons  not 
within  the  jurisdiction.  After  pointing  out  that  there  may  be 
formal  parties,  of  whose  omission  the  court  takes  no  account, 
Mr.  Justice  Miller,  in  delivering  the  opinion  in  Barney  v.  BaUir 
more,  6  Wall.  280,  went  on  to  say : 

"There  is  another  class  of  persons  whose  relations  to  the 
suit  are  such  that  if  their  interest  and  their  absence  are  for- 
mally brought  to  the  attention  of  the  court,  it  will  require 
them  to  be  made  parties,  if  within  its  jurisdiction,  before  de- 
ciding the  case.    But  if  this  cannot  be  done,  it  will  proceed  to 


WATERMAN  v.  CANAI^LOUISIANA  BANK  CO.      49 
215  U.  S.  Opinion  of  the  Court. 

administer  such  relief  as  may  be  in  its  power  between  the 
parties  before  it.  And  there  is  a  third  class  whose  interests  in 
the  subject-matter  of  the  suit  and  in  the  relief  sought  are  so 
bound  up  with  that  of  the  other  parties  that  their  legal  pres- 
ence as  parties  to  the  proceeding  is  an  absolute  necessity,  with- 
out which  the  court  cannot  proceed.  In  such  cases  the  court 
refuses  to  entertain  the  suit  when  these  parties  cannot  be  sub- 
jected to  its  jurisdiction." 

The  relation  of  an  indispensable  party  to  the  suit  must  be 
such  that  no  decree  can  be  entered  in  the  case  which  will  do 
justice  between  the  parties  actually  before  the  court  without 
injuriously  afifecting  the  rights  of  such  absent  party.  1  Street's 
Fed.  Equity  Practice,  §  519. 

If  the  court  can  do  justice  to  the  parties  before  it  without 
injuring  absent  persons  it  will  do  so,  and  shape  its  relief  in 
such  a  manner  as  to  preserve  the  rights  of  the  persons  not 
before  the  court.  If  necessary,  the  court  may  require  that  the 
bill  be  dismissed  as  to  such  absent  parties,  and  may  generally 
shape  its  decrees  so  as  to  do  justice  to  those  made  parties, 
without  prejudice  to  such  absent  persons.  Payne  v.  Hook,  7 
Wall.  425. 

Applying  these  principles  to  the  case  at  bar  we  are  of  opin- 
ion that  the  presence  of  Frederick  T.  Davis  as  a  party  to  the 
suit  is  not  essential  to  the  jurisdiction  of  the  Federal  court  to 
proceed  to  determine  the  case  as  to  the  parties  actually  before 
it.  In  other  words,  that  while  Davis  is  a  necessary  party  in  the 
sense  that  he  has  an  interest  in  the  controversy,  his  interest 
is  not  that  of  an  indispensable  party  without  whose  presence 
a  court  of  equity  cannot  do  justice  between  the  parties  before 
it,  and  whose  interest  must  be  so  affected  by  any  decree  to  be 
rendered  as  to  oust  the  jurisdiction  of  the  court. 

With  the  parties  before  it  the  court  may  proceed  to  deter- 
mine whether,  because  of  the  acts  alleged  in  the  bill,  the  heirs- 
at-law  of  Mrs.  Tilton  were  entitled  to  recover  because  of  the 
lapsed  legacy.  If  it  finds  the  issue  in  favor  of  the  complainant, 
it  may  proceed  to  determine  the  proportion  in  which  the  com- 
VOL.  ccxv — 4 


50  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 

plainant  and  the  Watermans  are  entitled  to  share,  without 
prejudice  to  the  rights  of  Davis.  It  may  direct  the  retention  of 
his  share  in  the  hands  of  the  executors,  to  be  adjudicated  in 
some  other  suit,  or  may  otherwise  shape  its  relief  so  as  to  do 
justice  to  the  parties  before  the  court  without  afifecting  his 
interest. 

Upon  the  whole  case  we  are  of  opinion  that  the  Federal 
court  has  jurisdiction  for  the  purpose  of  ascertaining  the  rights 
of  the  complainant  to  recover  as  against  the  executor,  and  the 
interest  of  the  persons  before  the  court  in  the  fund.  While  the 
court  could  make  no  decree  which  would  interfere  with  the 
possession  of  the  probate  court,  it  had  jurisdiction  to  enter- 
tain the  bill  and  to  render  a  judgment  binding  upon  the  par- 
ties to  the  extent  and  in  the  manner  which  we  have  already 
stated.  We  are,  therefore,  of  the  opinion  that  the  court  below 
erred  in  holding  that  there  was  no  jurisdiction  to  entertain 
this  suit,  and  the  decree  is  reversed  and  the  cause  remanded 
to  the  Circuit  Court  of  the  United  States  for  the  Eastern  Dis- 
trict of  Louisiana  for  further  proceedings  in  accordance  with 
this  opinion. 

Mr.  Justice  White  dissents. 


■4«»i 


UNITED  STATES  v.  UNION  SUPPLY  COMPANY. 

ERROR  TO  THE   DISTRICT  COURT  OF  THE   UNFTED  STATES  FOR 

THE   DISTRICT  OF  NEW  JERSEY. 

No.  120.    Argued  October  13,  14,  1909.— Decided  November  8,  1909. 

Where  corporations  are  as  much  within  the  mischief  aimed  at  by  a 
penal  statute  and  as  capable  of  willful  breaches  of  the  law  as  in- 
dividuals the  statute  will  not,  if  it  can  be  reasonably  interpreted  as 
including  corporations,  be  interpreted  as  excluding  them. 

Where  a  penal  statute  prescribes  two  independent  penalties,  it  will  be 
construed  as  meaning  to  inflict  them  so  far  as  possible,  and,  if  one  is 


UNITED  STATES  v.  UNION  SUPPLY  CO.  51 

216  U.  S.  Argument  for  Plaintiff  in  Error. 

impossible,  the  guilty  defendant  is  not  to  escape  the  other  which  is 
possible. 
Section  6  of  the  act  of  May  9,  1902,  c.  784,  32  Stat.  193,  imposing  cer- 
tain duties  on  wholesale  dealers  in  oleomargarine  and  imposing 
penalties  of  fine  and  imprisonment  for  violations  applies  to  corpo- 
rations, notwithstanding  the  penalty  of  imprisonment  cannot  be 
inflicted  on  a  corporation. 

The  facts  are  stated  in  the  opinion. 

The  Solicitor  General  for  plaintiff  in  error . 

The  duty  to  make  the  returns  in  question  was  undoubtedly 
imposed  upon  corporations  as  well  as  upon  natural  persons. 
1.  Section  6  of  the  act  of  1902  is  a  reenactment  of  §  41  of 
the  act  *'to  reduce  revenue  and  equalize  duties  on  imports, 
etc.,"  approved  October  1,  1890,  26  Stat.  567,  which  latter 
act  undoubtedly  applied  to  both  natural  persons  and  corpo- 
rations but  was  defective  in  not  providing  any  penalty  for 
its  violation.  2.  To  construe  §  6  as  not  imposing  a  duty  on 
corporate  dealers  would  be  inconsistent  with  the  general  pur- 
poses of  the  oleomargarine  legislation.  3.  Section  6  imposes 
the  duty  on  wholesale  dealers,  without  distinction  between 
different  classes  of  dealers  and  in  this  the  section  is  consistent 
with  the  other  provisions  of  the  act,  which  all  relate  to  oleo- 
margarine, or  dealers  in  or  manufacturers  of  it  and  not  to 
particular  persons  or  classes. 

Corporations  being  under  the  duty  to  make  said  returns, 
they  are  subject  to  the  criminal  punishment  which  §  6  visits 
upon  violators  of  that  duty,  so  far  as  their  nature  makes 
possible.  1.  The  purpose  of  the  statute  will  be  largely  de- 
feated unless  punishment  can  be  imposed.  2.  There  is  no 
difBctdty  in  construing  the  word  "person''  in  the  final  clause 
as  including  a  corporation.  United  States  v.  Amedy,  11 
Wheat.  392,  412;  1  Clark  &  M.,  Priv.  Corp.,  §252;  StaU  v. 
Security  Bank  of  Clark,  2  So.  Dak.  538;  State  v.  B.  &  0.  R.  fi. 
Co.,  15  W.  Va.  362;  United  States  v.  B.  &  0.  R,  R,  Co.,  Fed. 
Cas.  No.  14,509;  United  States  v.  John  Kelso  Co.,  86  Fed.  Rep. 


52  OCTOBER  TERM,  1909, 

Argument  for  Defendant  in  Error.  215  U.  S. 

304;  Beaston  v.  Fanners'  Bank,  12  Pet.  102,  135;  Bank  of 
Augusta  v.  Earle,  13  Pet.  519,  588;  Rev.  Stat.,  §  1.  3.  The 
statute  should  therefore  be  construed  as  imposing  only  a 
fine  in  the  case  of  corporate  violators.  Lewis,  Suth.  on  Constr. 
Stat.,  2d  ed.,  §  372;  Commonwealth  v.  Pulaski  County  Co.  & 
M.  Assn.,  92  Kentucky,  197;  1  Clark  &  M.,  Priv.  Corp.,  §  251, 
p.  657.  4.  Where  it  is  impossible  to  impose  both  sorts  of 
punishment  the  imposition  of  only  one  would  not  be  an 
exercise  of  discretion  by  the  court;  hence  the  cases  of  Ex  parte 
Karstindick,  93  U.  S.  396;  In  re  MiUs,  135  U.  S.  266;  United 
States  V.  Pridgeony  153  U.  S.  48;  In  re  Johnson,  46  Fed.  Rep. 
477;  Harman  v.  United  States,  50  Fed.  Rep.  521;  In  re  Chris- 
tian, 82  Fed.  Rep.  199;  Woodruff  y.  United  States,  58  Fed.  Rep. 
766,  and  Whitwarth  v.  United  States,  114  Fed.  Rep.  502,  are 
not  in  point.  5.  The  mention  of  natural  persons  in  §5  of 
the  act  has  no  effect  upon  the  construction  of  §  6. 

If  the  construction  placed  on  §  6  by  the  trial  court  be 
correct,  then  corporations  may  violate  some  fifty  or  sixty 
other  important  criminal  statutes  similarly  worded. 

A  construction  which  would  limit  the  application  of  §6 
to  natural  persons  would  render  it  unconstitutional  or  would 
at  least  make  its  constitutionality  seriously  questionable. 
Hurtado  v.  California,  110  U.  S.  516,  535;  Caldwell  v.  Texas, 
137  U.  S.  692,  697;  Giozza  v.  Tieman,  148  U.  S.  657,  662; 
Downes  v.  Bidwell,  183  U.  S.  244,  291;  Dorr  v.  United  Stales, 
195  U.  S.  138,  147,  and  therefore  such  a  construction  is  to  be 
avoided.  United  States  v.  Delaware  &  Hudson  Co,,  213  U.  S. 
366,  407. 

Mr.  Isaac  R.  Hilt,  Jr.,  for  defendant  in  error-. 

The  act  of  May  9, 1902,  c.  784, 32  Stat.  193,  is  an  original  act 
which  also  amends  the  act  of  August  2,  1886,  and  is  not  to  be 
construed  as  a  supplemental  act,  as  the  plaintiff  in  error  en- 
deavors to  show. 

Section  5  of  that  act  applies,  in  express  terms,  to  corpora- 
tions, and  gives  the  court  discretionary  power  to  punish  either 


UNITED  STATES  v.  UNION  SUPPLY  CO.  63 

215  tJ.  8.  Opinion  of  the  Court. 

by  fine  or  imprisonment  or  both.  Since  a  corporation  cannot 
be  imprisoned,  the  court,  under  §  6,  cannot  disregard  so  much 
of  that  section  as  prescribes  punishment  by  imprisonment  and 
punish  only  by  fine.  United  States  v.  Braun,  158  Fed.  Rep. 
450. 

See  the  decision  of  Judge  Caldwell  holding,  in  a  case  in 
which  the  statute  prescribed  a  penalty  of  fine  and  imprison- 
ment, that  a  sentence  of  imprisonment  only  was  erroneous. 
Woodruff  V.  United  States,  58  Fed.  Rep.  766. 

If  the  penalty  prescribed  for  the  act  be  both  fine  and  im- 
prisonment, then,  so  far  as  the  punishment  cannot,  from  the 
nature  of  the  offender,  be  carried  out,  the  statute  is,  of  course, 
inoperative.  Commonwealth  v.  Association,  92  Kentucky,  197. 
See  also  Clark's  Criminal  Law,  2d  ed.,  79.  It  may  be  that  such 
a  construction  discloses  a  serious  defect  in  the  law;  but  if  so, 
that  defect  must  be  cured  by  congressional  and  not  judicial 
legislation.  United  States  v.  Braun,  158  Fed.  Rep.  456.  Also 
see  Cumberland  Canal  Corp.  v.  Portland,  56  Maine,  77;  Anr- 
droscoggin  Water  Power  Co.  v.  Bethel  Steam  Mill  Co.,  64 
Maine,  441. 

It  has  been  held,  in  substance,  that  oleomargarine  acts  are 
complete  in  themselves  and  contain  provisions  for  all  the 
punishment  that  Congress  intended  for  violations  thereof. 
United  States  v.  Lamson,  165  Fed.  Rep.  80;  Grier  v.  Tucker, 
150  Fed.  Rep.  658;  Schafer  v.  Craft,  144  Fed.  Rep.  907;  Craft 
v.  Shafer,  153  Fed.  Rep,  175;  S.  C,  154  Fed.  Rep.  1002. 

The  contention  of  the  Government  that  a  decision  adverse  to 
the  Government  will  affect  many  other  now  existing  laws 
seems  unworthy  of  the  high  ideal  which  this  court  has  ever 
endeavored  to  fill.  The  decisions  of  this  court  are  always  far- 
reaching  and  the  enactments  of  Congress  are  not  necessarily 
settled  law  until  passed  upon  by  this  tribunal. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  an  indictment  of  a  corporation  for  wilfully  violating 


54  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

the  sixth  section  of  the  act  of  Congress  of  May  9, 1902,  c.  784, 
§6,  32  Stat.  193,  197.  That  section  requires  "wholesale 
dealers"  in  oleomargarine,  etc.,  to  keep  certain  books  and  to 
make  certain  returns.  It  then  goes  on  as  follows :  "  And  any 
person  who  wilfully  violates  any  of  the  provisions  of  this 
section  shall,  for  each  such  offense,  be  fined  not  less  than 
fifty  dollars  and  not  exceeding  five  hundred  dollars,  and  im- 
prisoned not  less  than  thirty  days  nor  more  than  six  months.'' 
The  corporation  moved  to  quash  the  indictment  and  the 
District  Court  quashed  it  on  the  ground  that  the  section  is 
not  applicable  to  corporations.  Thereupon  the  United  States 
brought  this  writ  of  error. 

The  argument  for  the  defendant  in  error  is  drawn  from  an 
earlier  decision  by  the  same  court.  It  is  that  §  5  applies  in  ex- 
press terms  to  corporations,  and  gives  the  court  discretionary 
power  to  punish  by  either  fine  or  imprisonment,  or  both, 
whereas  in  §  6  both  punishments  are  imposed  in  all  cases  and 
corporations  are  not  mentioned;  that  it  is  impossible  to  im- 
prison a  corporation,  and  that  the  statute  warrants  no  sen- 
tence that  does  not  comply  with  its  terms.  United  States  v. 
Braun  &  Fitts,  158  Fed.  Rep.  456.  We  are  of  opinion  that  this 
reasoning  is  imsound.  In  the  first  place,  taking  up  the  argu- 
ment, drawn  from  §  5,  that  corporations  were  omitted  in- 
tentionally from  the  requirements  of  §  6,  it  is  to  be  noticed 
that  the  sixth  section  of  the  present  act  copies  its  requirements 
from  the  act  of  October  1,  1890,  c.  1244,  §  41,  26  Stat.  567, 621, 
which  did  not  contain  the  penal  clause.  In  its  earlier  form  the 
enactment  clearly  applied  to  corporations,  and  when  the  same 
words  were  repeated  in  the  later  act  it  is  not  to  be  supposed 
that  their  meaning  was  changed.  The  words  ''wholesale 
dealers''  are  as  apt  to  embrace  corporations  here  as  they  are  in 
§  2,  requiring  such  dealers  to  pay  certain  taxes.  We  have  no 
doubt  that  they  were  intended  to  embrace  them.  The  words 
"any  person"  in  the  penal  clause  are  as  broad  as  ''wholesale 
dealers"  in  the  part  prescribing  the  duties.  U.  S.  Rev. Stat., 
§  1.    It  is  impossible  to  believe  that  corporations  were  inten- 


UNITED  STATES  v,  UNION  SUPPLY  GO.  56 

215  U.  S.  OpinioQ  of  the  Ck)urt. 

tionally  excluded.  They  are  as  much  withm  the  mischief 
aimed  at  as  private  persons,  and  as  capable  of  a  "wilful" 
breach  of  the  law.  New  York  Central  &  Hudson  River  R.  R.  v. 
United  States^  212  U.  S.  481.  If  the  defendant  escapes,  it  does 
so  on  the  single  ground  that  as  it  cannot  suffer  both  parts  of  the 
punishment  it  need  not  suffer  one. 

It  seems  to  us  that  a  reasonable  interpretation  of  the  words 
used  does  not  lead  to  such  a  result.  If  we  compare  §  5,  the 
application  of  one  of  the  penalties  rather  than  of  both  is  made 
to  depend  not  on  the  character  of  the  defendant,  but  on  the  dis- 
cretion of  the  judge;  yet  there  corporations  are  mentioned  in 
terms.  See  Hawke  v.  E,  HuUon  &  Co,  Limited,  (1909)  2  K.  B. 
93, 98.  And  if  we  free  our  minds  from  the  notion  that  crimmal 
statutes  must  be  construed  by  some  artificial  and  conventional 
rule,  the  natural  inference,  when  a  statute  prescribes  two  in- 
dependent penalties,  is  that  it  means  to  inflict  them  so  far  as 
it  can,  and  that  if  one  of  them  is  impossible,  it  does  not  mean 
on  that  account  to  let  the  defendant  escape.  See  Commonr- 
wealth  V.  Pulaski  County  Agricultural  &  Mechanical  Assodar 
tian,  92  Kentucky,  197,  201.  In  Hawke  v.  E.  HuUon  &  Co. 
(1909),  2  K.  B.  93,  it  was  held  that  the  words  "any  person" 
in  one  section  of  a  penal  act  did  not  embrace  a  corporation 
notwithstanding  a  statute  hke  our  Rev.  Stat.,  §  1.  But  that 
was  not  so  much  on  the  ground  that  imprisonment  was  con- 
templated a£  a  punishment,  as  because  the  person  convicted 
was  to  be  "deemed  a  rogue  and  a  vagabond."  Moreover  it 
was  thought  that  corporations  could  be  reached  under  another 
section  of  the  act. 

Judgment  reversed. 


66  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 


FLEMING  V.  Mccurtain. 

APPEAL  FROM  THE  CIRCUIT  COURT  OF  THE  UNITED  STATES  FOR 

THE  EASTERN  DISTRICT  OF  OKLAHOMA. 

No.  253.    Argued  October  20,  21,  1909.— Decided  November  8, 1909. 

The  grant  in  letters  patent,  issued  in  pursuance  of  the  treaty  of  Dandng 
Rabbit  Creek  of  September  27, 1830,  7  Stet.  333,  conveying  the  tract 
described  to  the  Choctaw  Indians  in  fee  simple  to  them  and  their 
descendants  to  inure  to  them  while  they  should  exist  as  a  nation  and 
live  thereon,  was  a  grant  to  the  Choctaw  Nation,  to  be  administered 
by  it  as  such;  it  did  not  create  a  trust  for  the  individuals  then  com- 
prising the  nation  and  their  respective  descendants  in  whom  as 
tenants  in  common  the  legal  title  would  merge  with  the  equitable 
title  on  dissolution  of  the  nation. 

The  facts  are  stated  in  the  opinion. 

Mr.  Frank  Hagerman  and  Mr.  John  G.  Carlisle,  with  whom 
Mr.  Webster  BaRinger  and  Mr.  Albert  J.  Lee  were  on  the  brief 
for  appellants.^ 

Mr.  Edward  P.  HiUj  with  whom  Mr.  David  C.  McCurtain 
was  on  the  brief  for  Green  McCurtain,  appellee.^ 

The  Solicitor  General  for  Richard  A.  Ballinger,  Secretary 
of  the  Interior,  appellee.^ 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  bill  in  equity  purporting  to  be  brought  by  and  on 

^  These  briefs  consist  of  over  350  printed  pages  and  contain  rdsum^ 
and  compilations  of;  and  extracts  from,  the  treaties  and  statutes  abol- 
ishing Indian  tribal  government  and  the  distribution  of  the  Indian 
lands  among  the  members  of  the  five  civilized  tribes  under  the  plan 
of  the  Dawes  Commission. 


FLEMING  V,  Mccurtain.  57 

215  U.  8.  Opinion  of  the  Ck)urt. 

behalf  of  some  thirteen  thousand  persons  ''all  persons  of 
Choctaw  or  Chickasaw  Indian  blood  and  descent  and  members 
of  a  designated  class  of  persons  for  whose  exclusive  use  and 
benefit  a  special  grant  was  made"  of  certain  property  in  Okla- 
homa. The  principal  defendants  are,  the  Secretary  of  the  In- 
terior; McCurtain,  Chief  of  the  Choctaws;  Johnston,  Governor 
of  the  Chickasaws,  and  all  persons  whose  names  appear  with 
theirs  on  the  rolls  of  "Citizens"  of  the  Choctaw  and  Chickasaw 
Nations  respectively,  and  all  persons  whose  names  appear  upon 
the  "freedmen"  rolls  of  those  Nations,  as  approved  by  the  Sec- 
retary of  the  Interior  on  or  before  March  4,  1907,  these  being 
the  persons  to  whom  the  Secretary  of  the  Interior  is  proceed- 
ing to  allot  the  above-mentioned  property,  being  all  the  prop- 
erty of  the  tribe.  The  main  object  of  the  bill  is  to  restrain  the 
allotment  to  the  defendants  and  to  undo  it  so  far  as  it  has 
taken  place,  to  establish  the  title  of  the  plaintiffs  for  the  pur- 
pose of  allotment,  and  to  have  a  new  distribution  decreed.  A 
firm  of  lawyers  is  joined,  on  the  allegation  that  they  have  re- 
ceived a  portion  of  the  property  under  a  fraudulent  arrange- 
ment. The  bill  was  demurred  to  for  want  of  equity  and  for 
want  of  jurisdiction  in  the  court. 

The  Circuit  Court  examined  the  treaty  and  conveyance 
under  which  the  plaintiflFs  claim  and  held  that  they  did  not  con- 
fer the  rights  alleged  in  the  bill;  that  the  right  to  share  in  the 
distribution  depended  on  membership  in  one  of  the  two  tribes, 
except  in  the  case  of  freedmen,  specially  provided  for;  that 
who  were  members  of  the  respective  tribes,  and  entitled  to  en- 
rollment as  such,  was  a  matter  for  Congress  to  determine;  that 
Congress  had  adopted  certain  rolls  when  finally  approved  by 
the  Secretary  of  the  Interior;  that  the  Secretary  had  acted  and 
the  plaintiffs  had  been  excluded;  that  his  action  was  final,  and 
that  the  court  had  no  jurisdiction  in  the  case.  The  demurrer 
to  the  jurisdiction  was  sustained,  the  bill  was  dismissed,  and 
the  plaintiffs  appealed  to  this  court. 

The  plaintiffs  found  their  claim  upon  the  Choctaw  treaty  of 
Dancmg  Rabbit  Creek,  September  27,  1830,  Article  2,  7  Stat. 


58  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

333,  and  letters  patent  of  March  23, 1842,  coupled  with  a  treaty 
between  the  Choctaws  and  Chickasaws  of  January  17,  1837, 
ratified  by  the  Senate  March  24,  1837,  11  Stat.  573.  By  Ar- 
ticle 2  of  the  treaty  of  1830  *'The  United  States  under  a  grant 
specially  to  be  made  by  the  President  of  the  U.  S.  shall  cause 
to  be  conveyed  to  the  Choctaw  Nation  a  tract  of  country  west 
of  the  Mississippi  River,  in  fee  simple  to  them  and  their  de- 
scendants, to  inure  to  them  while  they  shall  exist  as  a  nation 
and  live  on  it;''  with  the  boundaries.  The  letters  patent  recite 
this  article,  and,  *in  execution  of  the  agreement,'  grant  the 
described  tract,  to  have  and  to  hold  the  same  "  as  intended  to 
be  conveyed  by  the  aforesaid  article  'in  fee  simple  to  them  and 
their  descendants  to  inure  to  them  while  they  shall  exist  as  a 
nation  and  live  on  it,*  liable  to  no  transfer  or  alienation  except 
to  the  United  States  or  with  their  consent."  The  treaty  with 
the  Choctaws  gave  the  Chickasaws  a  district  within  the  limits  of 
the  Choctaws'  country,  "to  be  held  on  the  same  terms  that  the 
Choctaws  now  hold  it,  except  the  right  of  disposing  of  it, 
which  is  held  in  common  with  the  Choctaws  and  Chickasaws, 
to  be  called  the  Chickasaw  district  of  the  Choctaw  Nation." 
The  plaintiffs  say  that  the  patent  conveyed  the  legal  title  to 
the  Choctaw  Nation  in  trust  for  such  persons  as  were  members 
of  the  tribe  at  the  date  of  the  treaty,  or  of  the  Chickasaw  tribe 
at  the  date  of  the  treaty  with  them,  and  their  respective  de- 
scendants, and  that  upon  the  dissolution  of  the  nation  the  legal 
title  merged  with  the  equitable  title,  and  the  designated  class 
became  the  absolute  owners  of  the  property  as  tenants  in  com- 
mon. 

The  plaintiffs,  in  aid  of  their  view,  refer  to  various  indica- 
tions that  the  policy  of  the  United  States  already  was  looking 
toward  the  disintegration  of  the  Indian  tribes,  point  out  that 
the  words  on  which  they  rely  were  interlined  in  the  Govern- 
ment draft  at  the  instance  of  the  Indians,  and  from  these  and 
other  circumstances  argue  that  their  construction  is  confirmed. 
They  say  that  the  dominant  phrase  is  "  in  fee  simple  to  them 
and  their  descendants,"  and  that  the  use  of  the  plural  '  them' 


FLEMING  V.  McCURTAlN.  59 

215  U.  S.  Opinion  of  the  Ck)urt. 

shows  a  transition  from  the  Nation  as  formal  grantee  to  the 
members  as  beneficiaries.  They  say  that  *  descendants'  was 
used  instead  of  '  heirs '  or  '  children '  to  avoid  questions  of 
legitimacy,  or  giving  an  absolute  title  to  living  members  and 
their  children,  and  to  establish  a  principle  of  devolution  suit- 
able to  the  mode  of  life  and  unions  in  those  Indian  tribes. 
They  conclude  that  the  words  "inure  to  them  while  they  shall 
exist  as  a  nation  and  live  on  it/'  only  mark  the  duration  of  the 
legal  title  and  do  not  cut  down  the  equitable  right  conferred 
by  the  earlier  words. 

As  we  cannot  agree  with  this  construction  it  will  be  unnec- 
essary to  consider  many  of  the  further  allegations  of  the  bill. 
The  foundation  of  the  plaintiffs'  case  is  upon  the  words  of  the 
treaty  and  the  patent  that  we  have  set  forth.  Those  words 
seem  to  us  to  convey  a  different  meaning  on  their  face,  a 
meaning  that  would  not  be  changed  but  rather  confirmed  if  we 
were  to  refer  at  length  to  the  earlier  and  later  dealings  with 
the  tribes,  which  we  shall  not  need  to  do.  We  should  mention, 
however,  that  the  United  States  already  had  ceded  this  tract 
to  the  Choctaw  Nation,  with  no  qualifying  words,  by  the 
treaty  of  October  18,  1820,  Article  2,  7  Stat.  210.  Choctaw 
NatUm  V.  UnUed  States,  119  U.  S.  1,  38.  The  treaty  of  1830 
only  varied  the  description  a  little  and  provided  for  a  special 
patent.  But  it  would  not  better  the  plaintiffs'  case  if  the 
treaty  of  1830  were  the  single  root  of  their  grant.  In  a  grant 
to  the  Choctaw  Nation  as  a  nation  it  was  natural,  as  in  other 
cases,  to  use  some  words  of  perpetuity.  Of  course  the  United 
States  could  use  what  words  it  saw  fit  to  manifest  its  purpose, 
but  the  habit  derived  from  private  conveyances  would  be 
likely  to  prevail,  and  as  in  such  instruments  the  gift  of  a  fee 
is  expressed  by  adding  to  the  name  of  the  grantee  the  words 
*  and  his  heirs, '  or  in  case  of  a  corporation,  although  unnec- 
essary, its  'successors  and  assigns,'  here  also  some  addition 
was  to  be  expected  to  the  mere  name  of  the  grantee.  The 
word  Nation  is  used  in  the  treaty  as  a  collective  noun,  and  as 
such;  according  to  a  common  usage,  is  accompanied  by  a  plural 


60  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

verb  in  the  very  next  article.  ("The  Choctaw  Nation  of  In- 
dians consent  and  hereby  cede.")  Therefore  the  second  article 
says  '  to  them '  rather  than  '  to  it, '  just  as  it  says  **  while  they 
(i.  e.,  the  Nation)  shall  exist  as  a  Nation,"  and  it  adds  to  the 
untechnical  'in  fee  simple'  untechnical  words  of  limitation 
of  a  kind  that  would  indicate  the  intent  to  confine  the  grant 
to  the  Nation,  which  '  successors'  would  not,  and  at  the  same 
time  to  imply  nothing  as  to  the  rules  for  inheritance  of  tribal 
rights,  as  "heirs"  might  have  seemed  to  do.  We  may  com- 
pare "for  the  Government  of  the  Choctaw  Nation  of  Red 
People  and  their  descendants,"  in  Article  4.  The  word  was 
addressed  to  the  Indian  mind. 

There  is  not  a  suggestion  of  any  trust  in  the  language  to 
either  the  technical  or  the  imleamed  reader,  and  it  is  most 
unlikely  that  the  United  States  would  have  attempted  to  im- 
pose one  upon  the  Choctaws  in  favor  of  the  existing  members 
of  the  tribe  in  the  very  'Treaty'  that  dealt  with  them  as  a 
quasi  independent  nation  recognized  by  Article  5  as  having 
the  right  to  make  war,  and  that  by  the  fourth  article  bound 
the  United  States  to  secure  to  that  nation  "the  jurisdiction 
and  government  of  all  the  persons  and  property  that  may  be 
within  their  limits  west,"  etc.  It  is  true  that  in  further 
promising  to  secure  the  nation  from  all  laws  except  those  en- 
acted by  their  own  National  Councils,  the  fourth  article  adds 
"not  inconsistent  with  the  Constitution,  Treaties  and  Laws 
of  the  United  States;"  but  this  addition  is  far  from  suggest- 
ing that  a  constitutional  right  of  property  has  been  conferred 
upon  a  designated  class,  that  might  be  enforced  in  a  Circuit 
Court  of  the  United  States  by  a  bill  in  equity  against  what  was 
called  a  Nation.  How  far  any  one  was  from  that  understand- 
ing or  from  doubting  that  all  the  rights  granted  by  the  United 
States  were  in  the  Choctaw  Nation  is  shown  by  the  treaty 
with  the  Chickasaws  upon  which  the  plaintiffs  rely.  The 
nation  had  no  right  to  make  that  treaty  as  it  did,  if  it  was 
subject  to  the  trust  supposed.  Again,  the  limitation  of  time, 
'  while  they  shall  exist  as  a  nation  and  live  on  it,'  shows  that 


FLEMING  V.  Mccurtain.  61 

215  U.  8.  Opinion  of  the  Court. 

the  grant  has  reference  to  the  corporate  existence  of  the  na- 
tion as  such,  and  very  plainly  qualifies  the  absoluteness  of  the 
earUer  words,  *4n  fee  simple."  The  suggestion  that  it  limits 
the  duration  of  the  legal  title  only  but  leaves  a  trust  out- 
standing is  simply  arbitrary.  If  the  plural  signifies  the  mem- 
bers of  a  class  constituted  cestuis  que  trust  the  hmitation 
would  attach  to  the  trust.  But  the  only  answer  necessary  is 
that  no  such  separation  or  intent  can  be  discovered  in  the 
words. 

What  we  have  said  shows  another  sufficient  answer  to  the 
plaintiffs'  claim.  They  say  and  argue,  as  they  must  in  order 
to  make  out  their  right  to  a  distribution  to  themselves,  that 
the  Choctaws  and  Chickasaws  no  longer  exist  as  nations.  But 
if  so,  the  grant  also  was  at  an  end  when  the  nations  ceased  to 
be,  and  it  rested  with  the  bounty  of  the  United  States  to  de- 
cide what  should  be  done  with  the  land,  except  so  far  as  it 
already  had  been  decided  by  treaties  or  statutes  upon  which 
the  plaintiffs  do  not  and  cannot  rely.  It  is  said  that  by  Arti- 
cle 18,  in  case  of  any  well-founded  doubt  as  to  the  construc- 

I  tion  of  the  treaty,  it  is  to  be  construed  most  favorably  to- 

I  ward  the  Choctaws.     But  there  is  no  well-founded  doubt, 

except  whether  the  construction  contended  for  would  have 
been  regarded  as  favorable  to  the  Choctaws,  since  it  would 

I  have  cut  down  the  autonomy  that  the  treaty  so  carefully  ex- 

pressed.   See  further  Stephens  v.  Cherokee  Nation,  174  U.  S. 

I  445,  488.  Cherokee  Nation  v.  Hitchcock,  187  U.  S.  294,  307. 

Lone  Wolfv,  Hitchcock,  187  U.  S.  553,  568. 

The  residue  of  the  bill  becomes  immaterial  upon  the  failure 
of  the  plaintiffs  to  make  out  a  title  under  the  treaty  and  pat- 
ent. It  refers  to  the  act  of  June  28, 1898,  c.  517,  30  Stat.  495, 
and  the  earlier  statutes  leading  up  to  it,  which  estabUshed  a 
commission,  ordered  it  to  prepare  correct  rolls  of  citizenship, 
and  provided  by  §  21  of  the  act  of  1898  that  the  rolls  so  made, 
when  approved  by  the  Secretary  of  the  Interior,  should  be 
final,  (See  also  Acts  of  March  3,  1901,  c.  832,  31  Stat.  1058, 
1077;  April  26,  1906,  c.  1876,  34  Stat.  137.)    By  §  11  a  divi- 


62  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

sion  was  to  be  made  among  the  "  citizens  "  of  the  tribes  accord- 
ing to  the  rolls,  and  by  §  12  the  allottees  were  to  have  midis- 
turbed  possession  when  the  report  of  the  allotments  had  been 
made  to  the  Secretary  of  the  Interior  and  confirmed  by  him. 
By  §  29  an  agreement  with  the  Choctaws  and  Chickasaws  on 
the  matter  was  ratified,  and  by  act  of  July  1,  1902,  c.  1362, 
32  Stat.  641,  a  further  agreement  was  ratified,  which  again 
excluded  all  except  those  whose  names  were  on  the  roU.  Art. 
35.  The  bill  charges  that  these  agreements,  as  well  as  a  part 
of  the  act  of  1898,  were  void  as  excluding  some  of  the  plaintiffs 
who  were  not  residents  of  the  nation  on  June  28, 1898,  and  as 
not  having  been  approved  by  the  class,  or  a  majority  of  the 
class,  alleged  to  have  been  designated  by  the  treaty  and  patent 
that  we  have  discussed.  The  bill  goes  on  to  allege  that  rolls 
were  prepared  by  the  Commission,  and  approved  by  the  Secre- 
tary, within  the  time  allowed  by  the  statutes,  (Act  of  April  26, 
1906,  c.  1876,  §  2,  34  Stat.  137),  and  that  the  time  has  ex- 
pired, but  the  rolls  were  not  made  in  conformity  to  the  act  of 
1898,  and  are  not  correct  but  fraudulent,  in  various  particulars 
set  forth. 

But  these  allegations  make  out  no  case  for  the  plaintiffs. 
It  is  said  that  the  statutes  recognize  individual  rights  as  al- 
ready existing.  It  is  true  that  by  a  treaty  of  June  22,  1855, 
11  Stat.  611,  the  United  States  guaranteed  the  lands  "to  the 
members  of  the  Choctaw  and  Chickasaw  tribes,  their  heirs 
and  successors,  to  be  held  in  common;  so  that  each  and  every 
member  of  either  tribe  shall  have  an  equal,  undivided  interest 
in  the  whole"  with  provisos.  But  the  plaintiffs  do  not  claim 
under  this  treaty  or  mention  it  in  their  bill,  or  a  treaty  of 
April  28,  1866,  14  Stat.  769,  by  Articles  11-36  of  which  the 
change  from  common  to  individual  ownership  was  agreed, 
and  it  was  provided  that  unselected  land  should  "  be  the  com- 
mon property  of  the  Choctaw  and  Chickasaw  Nations,  in 
their  corporate  capacities,"  etc.  Art.  33.  They  might  be 
descendants  or  the  members  of  the  tribe  as  it  was  in  1839  or 
1842,  and  yet  not  members  or  heirs  of  members  of  the  tribe 


MARBLES  V,  CREECY.  63 

215  U.  S.  Syllabus. 

of  1854,  therefore  it  is  unnecessary  to  construe  this  treaty. 
Neither  do  the  plaintiffs  claim  under  any  title  to  be  derived 
from  the  statute  providing  for  distribution  according  to  the 
rolls  of  citizenship.  They  do  not  allege  that  they  are  citizens 
or  attempt  to  bring  themselves  within  any  grant  later  than 
the  treaty  and  patent  that  we  have  discussed.  They  disclose 
that  their  names  are  not  upon  the  rolls  and  that  the  decision 
of  the  Secretary  of  the  Interior  has  been  against  them  and 
they  show  no  reason  for  our  not  accepting  the  rolls  and  deci- 
sion as  final  according  to  the  terms  of  the  distributing  acts. 
See  West  v.  Hitchcock,  205  U.  S.  80;  GarfiM  v.  Goldsby,  211 
U.  S.  249,  259. 

Decree  affirmed. 


•  mmm* 


MARBLES  V.  CREECY,  CHIEF  OF  POLICE. 

APPEAL  FROM  THE  CIRCUIT  COURT  OF  THE  UNITED  STATES  FOR 

THE  EASTERN  DISTRICT  OF  MISSOURI. 

No.  23.    Submitted  November  5,  1909.— Decided  November  Id,  1909. 

The  executive  of  a  State  upon  whom  a  demand  is  made  for  the  surren- 
der of  a  fugitive  from  justice  may  act  on  the  papers  in  the  absence 
of,  and  without  notice  to,  the  accused,  and  it  is  for  that  executive  to 
determine  whether  he  will  regard  the  requisition  papers  as  sufficient 
proof  that  the  accused  has  been  charged  with  crime  in,  and  is  a 
fugitive  from  justice  from,  the  demanding  State,  or  whether  he  will 
demand,  as  he  may  if  he  sees  fit  so  to  do,  further  proof  in  regard  to 
such  facts. 

A  notice  in  the  requisition  papers  that  the  demanding  State  will  not 
be  responsible  for  any  expenses  attending  the  arrest  and  delivery  of 
the  fugitive  does  not  affect  the  legality  of  the  surrender  so  far  as  the 
rights  of  the  accused  under  the  Constitution  and  laws  of  the  United 
States  are  concerned. 

The  executive  of  the  surrendering  State  need  not  be  controlled  in  the 
discharge  of  his  duty  by  considerations  of  race  or  color,  or,  in  the 


64  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

absence  of  proof,  by  suggestions  that  the  alleged  fugitive  will  not  be 
fairly  dealt  with  by  the  demanding  State. 
On  habeas  corpus  the  court  can  assume  that  a  requisition  made  by  an 
executive  of  a  State  is  solely  for  the  purpose  of  enforcing  its  laws 
and  that  the  person  surrendered  will  be  legally  tried  and  adequately 
protected  from  illegal  violence. 

The  facts  are  stated  in  the  opinion. 

Mr,  George  D,  Reynolds  for  appellant : 

The  provisions  of  §  5278,  Rev.  Stat.,  will  be  strictly  con- 
strued and  all  the  requirements  of  the  statute  must  be  re- 
spected. Ex  parte  Hart,  63  Fed.  Rep.  259;  Ex  parte  Morgan, 
20  Fed.  Rep.  298;  Kerducky  v.  Dennison,  24  How.  66. 

The  following  facts  should  have  been  clearly  stated  in  the 
warrant  issued  by  the  Governor  of  surrendering  State  to  show 
that  it  is  issued  in  a  case  authorized  by  law  and  the  power  to 
issue  the  warrant  depends  upon  the  following  facts : 

1.  That  the  person  is  charged  in  some  State  or  Territory 
of  the  United  States  with  treason,  felony  or  other  crime. 

2.  That  he  had  fled  from  justice  and  was  found  to  be  a 
fugitive  from  justice. 

3.  That  he  was  found  in  the  State. 

4.  That  the  executive  authority  of  the  State  from  which 
he  fled  had  demanded  his  delivery  to  be  removed  to  the  State 
having  jurisdiction  of  the  crime. 

If  the  warrant  omits  to  state  that  the  person  has  fled  from 
justice  or  that  he  is  found  in  the  asylum  it  is  defective.  Mat- 
ter of  Romaine,  23  California,  585,  592. 

The  executive  of  the  asylum  State  is  not  required  by  the 
act  of  Congress  to  cause  the  arrest  of  appellant  and  his  deliv- 
ery to  the  agent  appointed  to  receive  him  without  proof  of 
the  fact  that  he  was  a  fugitive  from  justice.  Ex  parte  Reggd, 
114  U.  S.  642. 

A  warrant  for  arrest  and  return  must  recite  and  set  forth 
the  evidence  necessary  to  authorize  the  state  executive  to  is- 
sue it  and  unless  it  does  it  is  illegal  and  void  and  the  warrant  is- 


MARBLES  V,  CREECY.  66 

215  TJ.  S.  Opinion  of  the  Ck)urt. 

sued  by  the  Governor  of  surrendering  State  should  have  stated 
that  as  such  governor  he  had  found  appellant  to  have  been  a 
fugitive  from  justice.  In  re  Doo  Woon,  18  Fed.  Rep.  898; 
Kentucky  v.  Dennisony  24  How.  66;  Ex  parte  Smith,  3  McLean, 
121. 

Where  the  warrant  alone  is  before  the  court  and  is  insuffi- 
cient on  its  face  the  prisoner  must  necessarily  be  discharged. 
Standahl  v.  Richardson,  34  Minnesota,  115;  Ex  parte  Powell,  20 
Florida,  806. 

The  warrant  must  recite  that  the  person  charged  is  a  fugi- 
tive from  justice  and  it  is  not  enough  that  it  state  that  the 
demanding  executive  has  represented  him  to  be  such.  In  re 
Jackson,  2  Flippin,  183. 

In  a  petition  for  a  writ  of  habeas  corpus  verified  by  the  oath 
of  the  petitioner  as  required  by  §  754,  Rev.  Stat.,  facts  duly  al- 
leged may  be  taken  to  be  true  unless  denied  by  the  return  or 
controlled  by  other  evidence,  and  in  this  case  the  return  of  the 
jailor  did  not  deny  that  the  prisoner  was  not  present  in  the 
demanding  State  at  the  time  when  the  crime  was  alleged  to 
have  been  committed.    Whitten  v.  Torrdinson,  160  U.  S.  231. 

There  was  no  appearance  or  brief  for  appellee. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

The  appellant  Marbles  was  indicted  in  the  Circuit  Court  of 
Warren  County,  Mississippi,  for  the  crime  of  having,  in  viola- 
tion of  the  laws  of  Mississippi,  made  a  deadly  assault  with 
the  willful  and  felonious  intent  to  kill  and  murder  the  per- 
son assaulted.  Miss.  Code,  §  1043.  The  deputy  sheriff  of  the 
county  furnished  a  certified  copy  of  the  indictment  to  the 
Governor  of  Mississippi,  as  well  as  his  affidavit  that  Marbles 
was  a  fugitive  from  the  justice  of  that  State  and  had  taken 
refuge  in  Missouri,  and  applied  for  a  requisition  upon  the 
Governor  of  Missouri  for  the  arrest  of  the  alleged  criminal  and 
his  delivery  to  the  agent  of  Mississippi,  to  be  conveyed  to  the 
VOL.  ccxv — 5 


66  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

latter  State  and  there  dealt  with  according  to  law.  There- 
upon the  Governor  of  Mississippi  issued  his  requisition,  in  the 
ordinary  form,  except  that  there  was  in  it  this  unusual,  not 
to  say,  extraordinary,  provision:  "This  State  will  not  be  re- 
sponsible for  any  expense  attending  the  execution  of  this  req- 
uisition for  the  arrest  and  delivery  of  fugitives  from  justice." 

The  Governor  of  Missouri  honored  the  requisition  made 
upon  him  and  issued  his  warrant  for  the  arrest  of  Marbles 
and  his  delivery  to  the  designated  agent  of  Mississippi.  That 
warrant  recited  the  fact  that  the  accused  was  proceeded 
against  as  a  fugitive  from  justice,  and  that  the  Governor  of 
Mississippi  had,  as  required  by  the  statute  of  the  United  States, 
produced  to  the  Governor  of  Missouri  a  copy  of  the  indict- 
ment certified  to  be  authentic,  and  charging  the  fugitive  with 
having  committed  the  crime  of  assault  to  kill.  Rev.  Stat., 
§  5278. 

Marbles  was  arrested  under  this  warrant,  and,  being  in 
custody,  sued  out  a  writ  of  habeas  corpus  from  one  of  the 
judges  of  the  Circuit  Court  of  the  United  States  for  his  dis- 
charge upon  the  ground  that  he  was  deprived  of  his  liberty 
in  violation  of  the  Constitution  of  the  United  States.  The 
application  for  the  writ  was  heard  in  that  court.  The  reasons 
assigned  in  support  of  the  contention  just  stated  were:  That 
the  Governor  of  Missouri  had  no  jurisdiction  to  issue  a  war- 
rant for  his  arrest,  in  that  it  was  not  shown  before  that  oflScer 
that  the  accused  was  a  fugitive  from  the  justice  of  Mississippi, 
or  had  fled  from  that  State,  nor  was  there  any  evidence  before 
the  Governor  of  Missouri  that  the  petitioner  was  personally 
or  had  been  continuously  present  in  Mississippi  when  the 
crime  in  question  was  alleged  to  have  been  committed;  that 
it  appeared  on  the  face  of  the  indictment  accompanying  the 
requisition  that  no  crime  under  the  laws  of  Mississippi  was 
legally  charged  or  had  been  committed  by  the  accused;  that 
it  did  not  appear  before  the  Governor  of  Missouri,  when  the 
requisition  was  presented  to  him,  that  the  petitioner  was,  in 
fact,  a  fugitive  from  the  justice  of  Mississippi;  that  said  req- 


MARBLES  V.  CREECY.  67 

215  U.  S.  Opinion  of  the  Court. 

uisition  was  not  certified  to  as  required  by  the  laws  of  the 
United  States;  that  there  was  not  produced  to  that  execu- 
tive a  copy  of  any  indictment  or  affidavit  certified  as  authen- 
tic by  the  Governor  of  Mississippi ;  and  that  the  petitioner  was 
not  present  before  the  Governor  of  Missouri  at  the  hearing 
before  him  of  the  warrant  of  extradition,  nor  was  he  given  an 
opportunity  to  meet  the  witnesses  face  to  face. 

No  reason  whatever  was  shown  on  the  hearing  of  the  appli- 
cation for  habeas  corpus  for  the  discharge  of  the  accused  from 
custody — nothing  that  showed  any  failure  to  conform  to  the 
requirements  of  the  Constitution  or  laws  of  the  United  States. 
The  material  allegations  of  fact  set  forth  in  the  application 
for  the  writ  are  wholly  unsupported  by  anything  in  the  record; 
indeed,  some  of  them  are  affirmatively  disproved  by  the  rec- 
ord. No  proof  at  all  appears  to  have  been  made  by  the  ac- 
cused of  any  essential  fact,  and  the  decision  of  the  court  must 
have  been  based  altogether  upon  the  same  official  documents 
that  were  presented  to  the  Governor  of  Missouri  supported 
by  the  legal  inferences  to  be  drawn  from  their  contents.  It 
was  made  to  appear  by  those  documents  that  the  accused 
was  charged  by  indictment  with  a  specified  crime  against  the 
laws  of  Mississippi  (Miss.  Code,  §  1043)  and  had  become  a 
fugitive  from  the  justice  of  that  State.  That  was  legally  suf- 
ficient, without  more,  to  authorize  a  requisition,  and  when 
the  Governor  of  Missouri  was  furnished,  as  he  was,  with  a 
copy  of  the  indictment  against  Marbles,  certified  by  the  Gov- 
ernor of  Mississippi  to  be  authentic,  it  then  became  the  duty 
of  the  Governor  of  Missouri,  under  the  Constitution  and  laws 
of  the  United  States,  to  cause  the  arrest  of  the  alleged  fugi- 
tive. So  reads  the  statute  enacted  in  execution  of  the  con- 
stitutional provision  relating  to  fugitives  from  justice.  Rev. 
Stat.,  §  5278.  It  is  true  that  it  does  not  appear  from  the  rec- 
ord before  us  that  there  was  any  evidence  before  the  Gov- 
ernor of  Missouri  other  than  the  requisition  of  the  Governor 
of  Mississippi  and  a  copy  of  the  indictment  against  the  alleged 
fugitive,  certified  to  be  authentic.    It  is  also  true  that,  so  far 


68  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

B8  the  Constitution  and  laws  of  the  United  States  are  con- 
cerned, the  Governor  of  Missouri  could  not  legally  have  issued 
his  warrant  of  arrest  unless  the  accused  was  charged  with 
what  was  made  by  Mississippi  a  crime  against  its  laws  and 
was  a  fugitive  from  justice.  But  those  facts  were  determin- 
able in  any  way  deemed  satisfactory  by  that  executive,  and 
he  was  not  bound  to  demand — although  he  may  have  required 
if  the  circumstances  made  it  proper  to  do  so — proof  apart 
from  proper  requisition  papers  that  the  accused  was  so 
charged  and  was  a  fugitive  from  justice.  He  was,  no  doubt,  at 
liberty  to  hear  independent  evidence  showing  that  the  act  with 
which  the  accused  was  charged  by  indictment  was  not  made 
criminal  by  the  laws  of  Mississippi  and  that  he  was  not  a 
fugitive  from  justice.  No  such  proof  appears  to  have  been  of- 
fered to  the  Governor  or  to  the  court  below.  But  the  official 
documents,  reasonably  interpreted,  made  a  pritm  facie  case 
against  the  accused  as  an  alleged  fugitive  from  justice  and 
authorized  that  executive  to  issue  his  warrant  of  arrest  as 
requested  by  the  Governor  of  Mississippi.  The  contention 
that  the  Governor  of  Missouri  could  not  act  at  all  on  the  req- 
uisition papers  in  the  absence  of  the  accused  and  without  pre- 
vious notice  to  him  is  unsupported  by  reason  or  authority, 
and  need  only  be  stated  to  be  rejected  as  unsound. 

The  principles  here  announced  are  firmly  established  by 
the  decisions  of  this  court.  McNichols  v.  Pease,  207  U.  S. 
100;  Ex  parte  Reggd,  114  U.  S.  642,  652,.  653;  Roberts  v.  Reilly, 
116  U.  S.  80,  95;  HyaU  v.  Corkran,  188  U.  S.  691,  719;  Munsey 
V.  CUmgh,  196  U.  S.  364,  372;  Pettibone  v.  Nichols,  203  U.  S. 
192;  Apjjieyard  v.  Massachusetts,  203  U.  S.  222. 

Other  questions  may  be  noticed.  One  is,  in  effect,  that  the 
requisition  of  the  Governor  of  Mississippi  was  invalid  because 
of  the  clause  or  provision  therein  that  that  State  would  not 
be  responsible  for  any  expense  attending  the  arrest  and  deliv- 
ery of  the  alleged  fugitive.  We  will  not  indulge  in  conjecture 
as  to  the  object  of  inserting  that  clause  in  the  requisition; 
particularly,  as  the  State  of  Mississippi  is  not  represented  in 


MARBLES  V,  CREECY.  69 

215  U.  S.  Opinion  of  the  Court. 

this  court  by  counsel.  It  is  suflScient  now  to  say  that  the 
warning  given  to  the  Governor  of  Missouri  that  Mississippi 
would  not  be  responsible  for  any  expense  attending  the  arrest 
and  delivery  of  the  alleged  fugitive  was  a  matter  for  the  con- 
sideration of  the  Governor  of  the  former  State  when  he  re- 
ceived the  oflBcial  demand  for  the  arrest  and  delivery  of  the 
appellant  as  a  fugitive  from  justice  and  a  copy  of  the  indict- 
ment against  Marbles,  certified  as  authentic.  It  was  not  a 
matter  that  could  legally  affect  the  inquiry  before  the  Circuit 
Court  on  habeas  corpus,  whether  the  requisition  of  the  de- 
manding State  and  the  action  thereon  by  the  Governor  of 
Missouri  were  in  substantial  conformity  with  the  Constitution 
and  the  laws  of  the  United  States,  and,  therefore,  not  in  any 
legal  sense  hostile  to  the  liberty  of  the  accused. 

The  other  question  to  be  noticed  is  that  raised  by  the  fol- 
lowing averments  in  the  application  for  the  writ  of  habeas 
corpus:  "Your  petitioner  further  states  that  he  is  a  negro, 
and  that  the  race  feeling  and  race  prejudice  is  so  bitter  in  the 
State  of  Mississippi  against  negroes  that  he  is  in  danger,  if 
removed  to  that  State,  of  assassination  and  of  being  killed, 
and  that  he  cannot  have  a  fair  and  impartial  trial  in  any  of 
the  courts  of  that  State,  and  that  to  deliver  him  over  to  the 
authorities  of  that  State  is  to  deprive  him,  as  a  citizen  of  the 
United  States  and  a  citizen  and  resident  of  the  State  of  Missis- 
sippi, of  the  equal  protection  of  the  laws."  It  is  clear  that  the 
executive  authority  of  a  State  in  which  an  alleged  fugitive 
may  be  found,  and  for  whose  arrest  a  demand  is  made  in  con- 
formity with  the  Co^stitution  and  laws  of  the  United  States, 
need  hot  be  controlled  in  the  discharge  of  his  duty  by  consider- 
ations of  race  or  color,  nor  by  a  mere  suggestion — certainly 
not  one  unsupported  by  proof,  as  was  the  case  here — ^that  the 
alleged  fugitive  will  not  be  fairly  and  justly  dealt  with  in  the 
State  to  which  it  is  sought  to  remove  him  nor  be  adequately 
protected,  while  in  the  custody  of  such  State,  against  the  ac- 
tion of  lawless  and  bad  men.  The  court  that  heard  the  appli- 
cation for  discharge  on  writ  of  habeas  corpus  was  entitled  to 


70  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 

assume;  as  no  doubt  the  Governor  of  Missouri  assumed,  that 
the  State  demanding  the  arrest  and  delivery  of  the  accused 
had  no  other  object  in  view  than  to  enforce  its  laws,  and  that 
it  would,  by  its  constituted  tribunals,  officers  and  representa- 
tives, see  to  it  not  only  that  he  was  legally  tried,  without  any 
reference  to  his  race,  but  would  be  adequately  protected  while 
in  the  State's  custody  against  the  illegal  action  of  those  who 
might  interfere  to  prevent  the  regular  and  orderly  adminis- 
tration of  justice. 

We  perceive  no  error  of  law  in  the  record  and  the  judgment 
of  the  Circuit  Court  must  be  affirmed. 

his 80  ordered. 


McGILVRA  AND  BRESSLER,^  v.  ROSS,  STATE  LAJJD 
COMMISSIONER  OF  THE  STATE  OF  WASHINGTON. 

APPEAL  FROM  THE  UNITED  STATES  CIRCUIT  COURT  OF  APPEALS 

FOR  THE   NINTH   CIRCUIT. 

No.  328.    Argued  October  19,  20,  1909.— Decided  November  15,  1909. 

While  the  construction  of  the  act  of  Congress  under  which  a  patent 
issued  and  what  rights  passed  under  the  patent  present  Federal 
questions  which  give  the  Circuit  Court  jurisdiction  of  the  case  as 
one  arising  under  the  laws  of  the  United  States,  if  prior  decisions 
have  so  defined  such  rights  that  they  are  removed  from  controversy, 
jurisdiction  does  not  exist  in  the  absence  of  diverse  citizenship. 

The  decision  in  Shively  v.  Bowlby,  152  U.  S.  1,  which  determined  the 
relative  rights  of  a  patentee  of  the  United  States  and  one  holding 
under  a  conveyance  from  the  State  of  land  below  high  watermark 
applies  equally  to  lands  bordering  on  navigable  waters,  whether  tidal 
or  inland,  and  the  test  of  navigability  is  one  of  fact. 

Each  State  has  full  jurisdiction  over  the  lands  within  its  borders  in- 
cluding the  beds  of  streams  and  other  waters,  Kansas  v.  Colorado, 
206  U.  S.  46,  93,  subject  to  the  rights  granted  by  the  Constitution  to 
the  United  States. 

*  In  the  Circuit  Court  separate  cases  were  instituted  by  McGilvia 
and  Bressler,  respectively. 


McGILVRA  V.  ROSS.  71 

215  U.  8.  Statement  of  the  Case. 

Where  the  Circuit  Court  is  without  jurisdiction  because  the  Federal 
questions  presented  by  the  bill  are  no  longer  open  to  discussion  it 
should  dismiss  the  bill  and  not  decide  it  on  the  merits  in  order  that 
the  plaintiff's  rights,  if  any,  may  be  litigated  in  the  state  courts. 

164  Fed.  Rep.  604,  affirmed  as  to  lack  of  jurisdiction  and  case  remanded 
for  dismissal. 

These  cases  were  consolidated  in  the  Circuit  Court.  The 
appellants  were  complainants  in  the  suits  respectively,  and 
asserted  title  by  virtue  of  patents  from  the  United  States  to 
lands  bordering  on  and  touching  Lakes  Washington  and  Union 
in  the  State  of  Washington  to  the  lands  below  the  high-water 
mark  of  said  lakes  respectively,  against  a  title  claimed  by  the 
State.  The  appellee,  James  P.  Agnew,  is  the  auditor  of  the 
county  of  King,  and  the  other  appellees  constitute  the  board 
of  land  conmiissioners  of  the  State. 

The  fxmdamental  question  presented  is  whether  rights  be- 
low high-water  mark  passed  to  the  patentees  as  appurtenant 
to  the  uplands  conveyed  to  them  or  whether  they  vested  in  the 
State  upon  its  admission  into  the  Union  and  are  subject  to  the 
control  of  the  State. 

The  patent  in  the  McGUvra  case  was  issued  in  1866,  under 
the  act  of  Congress  of  April  24, 1820,  entitled  "An  act  making 
further  provisions  for  the  sale  of  public  lands;"  that  in  the 
Bressler  case  was  issued  under  the  provisions  of  the  act  of  Con- 
gress of  September  27,  1850,  entitled  "An  act  to  create  the 
office  of  surveyor  of  the  public  lands  in  Oregon,  and  to  provide 
for  the  survey  and  to  make  donations  to  the  settlers  of  the 
said  public  land."  It  is  alleged  that  the  lakes  arc  respectively 
non-tidal  bodies  of  water,  situated  wholly  within  the  county  of 
King;  Lake  Washington  being  about  twenty  miles  in  length, 
with  an  average  breadth  of  three  miles,  and  Lake  Union  being 
about  three  miles  in  length,  with  an  average  breadth  of  one 
mile ;  and  that  neither  lake  has  an  outlet,  navigable  for  boats, 
scows  or  lighters,  and  at  all  times  has  been  confined  to  the  con- 
veyance of  passengers  or  freight  to  and  from  different  points 
upon  said  lake;  and  that  neither  lake  is  now  or  ever  has  been 


72  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

susceptible  of  navigation,  so  far  as  the  carrying  of  passengers 
or  freight  is  concerned,  to  points  upon  the  lake  from  different 
counties  of  the  State,  to  and  from  other  States,  or  to  and  from 
foreign  nations,  and  that  the  same  can  never  be  used  unless  it 
be  by  a  very  extensive  system  of  canals  or  dredging  of  the  out- 
let thereof. 

It  is  alleged  that  the  height  of  the  waters  of  Lake  Washing- 
ton is  dependent  upon  the  amount  of  rainfall,  and  that  the  rise 
and  fall  of  the  water  "covers  and  uncovers  many  hundreds  of 
thousands  of  square  feet  of  land"  in  the  patented  tracts,  ex- 
ceeding the  value  of  $40,000.  As  to  Lake  Union,  it  is  alleged 
that,  by  a  dam  constructed  about  fifty  years  ago,  its  waters 
were  raised  and  are  maintained  about  seven  feet  higher  than 
their  natural  level.  And  further,  that  a  ditch  has  been  ex- 
cavated, crossing  a  narrow  neck  of  land  which  separates  Lake 
Union  from  Lake  Washington,  through  which  the  waters  of 
the  latter  flow  into  Lake  Union  and  keep  its  waters  at  practi- 
cally the  same  level. 

It  is  further  alleged  that  by  virtue  of  the  patents  and  the 
acts  of  Congress  under  which  they  were  issued  there  became 
vested  in  the  patentees  and  their  successors  the  ownership  of 
those  portions  of  the  lakes  immediately  in  front  of  the  tracts 
patented  "out  into"  the  "deep  waters"  of  the  lakes,  subject 
only  to  the  supervision  in  their  use  of  the  same  to  the  extent 
that  they  be  so  used  by  the  proprietor  thereof;  that  said  pro- 
prietor should  not  and  did  not  interfere  with  the  rights  of  other 
riparian  owners,  and  the  rights  of  the  public  in  navigating  the 
waters  of  said  lake.  And  that  they  became  and  are  vested 
from  the  dates  of  the  several  patents  with  the  exclusive  right 
and  privilege  to  make  such  fills  in  shallow  water,  and  to  erect 
such  piers,  docks  and  warehouses  as  might  be  convenient  and 
necessary  to  aid  and  facilitate  the  navigation  upon  the  waters 
of  the  lakes,  and  that  said  rights  were  so  vested,  "limited  only 
by  the  rights  of  supervision  in  the  Government;  that  said 
rights  be  exercised  in  such  a  manner  that  there  should  be  no 
interference  with  the  rights  of  other  riparian  owners,  or  with 


McGILVRA  V,  ROSS.  73 

215  U.  S.  Statement  of  the  Case. 

the  rights  of  the  public  to  freely  navigate  upon  the  navigable 
waters  of  said  lake,"  and  that  these  rights  were  conveyed  by 
the  patents  many  years  before  the-  admission  of  Washington 
into  the  Union. 

It  is  alleged  that  the  State  was  admitted  into  the  Union, 
November  11, 1889,  and  that  Article  XVII  of  the  constitution 
of  the  State  reads  as  follows : 

"  The  State  of  Washington  asserts  its  ownership  to  the  beds 
and  shores  of  all  navigable  waters  in  the  State  up  to  and  in- 
cluding the  line  of  ordinary  high  tide  in  waters  where  the  tide 
ebbs  and  flows,  and  up  to  and  including  the  line  of  ordinary 
high  water  within  the  banks  of  all  navigable  rivers  and  lakes: 
provided,  that  this  section  shall  not  be  construed  so  as  to 
debar  any  person  from  asserting  his  claim  to  vested  rights  in 
the  courts  of  the  State." 

That  by  virtue  of  this  provision  the  State  claims  the  owner- 
ship in  fee  of  all  the  waters  and  lands  under  the  waters  of  the 
lakes  up  to  and  including  the  line  of  ordinary  high  water,  and 
by  reason  of  such  claim  of  ownership  the  legislature  passed 
Senate  Bill  No.  101,  which  was  approved  by  the  governor 
February  4,  1907,  and  took  effect  immediately  upon  its  pas- 
sage. The  act  was  entitled  "  An  act  to  provide  for  the  estab- 
lishment of  harbor  lines,  survey,  platting  and  appraisal  of 
shore  lands  of  the  first  class  of  Lakes  Washington  and  Union, 
in  King  County,  Washington,  the  sale  and  disposition  of  said 
shore  lands,  the  creation  of  the  Alaskar Yukon-Pacific  Exposi- 
tion Fund,  and  declaring  an  emergency." 

It  is  also  alleged  that  it  is  provided  in  said  act  that  ''the 
board  of  state  land  commissioners  of  the  State  of  Washington, 
acting  as  a  board  of  harbor  Ime  commission  or  other  proper 
official  capacity  as  now  authorized  by  law,  shall,  as  soon  as  pos- 
sible after  the  passage  of  this  act,  and  not  later  than  July  1, 
1907,  establish  harbor  lines  in  Lakes  Washington  and  Union, 
situated  in  King  County,  Washington,  in  front  of  the  city  of 
Seattle,  .  .  .  ;  and  to  survey,  plat,  examine  and  appraise 
such  shore  lands  of  the  first  class  within  or  in  front  of  the 


74  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

limits  of  the  said  city  of  Seattle  .  .  .  After  the  establish- 
ment of  said  harbor  lines  and  the  survey,  platting,  examination 
and  appraisal,  as  aforesaid,  a  copy  of  the  plat  and  record 
thereof,  as  required  by  existing  law,  shall  be  deposited  with  the 
county  auditor  of  King  County,  Washington,  and  another 
copy  shall  be  delivered  to  the  commissioner  of  public  lands  of 
this  State,  and  the  same  shall  be  filed  and  safely  kept  as  re- 
quired by  law." 

It  is  further  alleged  that  the  board  has  proceeded  to  survey 
the  lands  belonging  to  the  appellants  respectively,  and  has  in- 
cluded therein  those  portions  which  he  between  the  line  of 
ordinary  high  water  and  the  line  of  low  water  out  into  the 
lakes  to  a  point  where  the  depth  is  thirty  feet,  and  that  the 
plat  thereof  covers  the  property  of  the  appellees. 

It  is  alleged  that  John  J.  McGilvra,  the  original  patentee  in 
the  McGilvra  case,  "  did  erect  and  construct  out  into  the  waters 
of  Lake  Washington  a  wharf  in  front  of  a  portion"  of  the 
patented  lands,  which  was  erected  and  maintained  at  great 
expense  to  facilitate  the  commerce  of  the  lake,  and  which  was 
for  many  years  the  only  wharf  within  the  limits  of  Seattle. 
It  is  alleged  that  the  wharf  is  still  owned  by  the  appellants  in 
the  case,  and  still  used  for  the  purpose  above  mentioned,  and 
is,  with  the  privilege  connected  therewith  and  appurtenant 
thereto,  of  greater  value  than  $10,000. 

It  is  also  alleged  in  the  Bressler  case  that  the  owners  of  the 
lands  alleged  therein  to  have  been  patented  constructed  a 
dock  or  wharf  into  the  waters  of  Lake  Union,  for  a  landing 
place  for  passengers  and  freight,  and  it  was  and  is  used  for  that 
purpose,  and  that  the  appellant  Bressler  has,  since  his  owner- 
ship of  the  property,  further  improved  the  same,  by  covering 
nearly  all  of  it  with  buildings,  which  have  long  been  occupied 
by  his  tenants  for  the  purpose  of  trade  and  manufacture,  and 
the  value  of  the  wharf  and  buildings  exceeds  $12,000,  and  the 
value  of  the  property  $75,000. 

It  is  alleged,  in  both  cases,  that  by  the  constitutional  pro- 
vision above  mentioned  the  State  "seeks  to  confiscate  without 


McGILVRA  r.  ROSS.  75 

215  U.  S.  Statement  of  the  Case. 

compensation,  and  if  declared  valid  and  of  effect  will  confiscate 
without  compensation  the  rights  of''  appellants  in  and  to  all 
the  rights  hereinbefore  set  forth  as  vested  for  a  period  of 
twenty-four  years  before  the  admission  of  the  State,  and  will 
divest  appellants  of  their  said  property  rights  without  com- 
pensation and  without  due  process  of  law,  all  of  which,  it  ''  is 
alleged,  is  contrary  to  the  protection  guaranteed  to  the  citizens 
of  the  United  States  by  the  Fourteenth  Amendment  of  the 
Constitution  of  the  United  States." 

And  as  to  the  acts  and  threatened  acts  of  the  appellees  above 
described  and  other  acts  which  they  threaten  in  pursuance  of 
the  statute  of  February  4, 1907,  it  is  alleged  that  they  will  cast 
a  cloud  upon  the  respective  rights,  titles  and  properties  of  the 
appellants  in  the  respective  cases,  to  their  damage  respectively 
in  the  sums  of  $5,000,  $25,000  and  $100,000,  and  that  they 
will  take  and  convert  into  money  the  proj)erties  of  the  respec- 
tive appellants  without  compensation  and  without  due  process 
of  law,  and  that  appellants  have  no  plain,  speedy  or  adequate 
remedy  at  law. 

Injunctions  were  prayed,  provisional  and  perpetual,  also 
general  relief. 

Demurrers  were  filed  to  the  bills  on  the  ground  that  they 
exhibited  no  equities  in  the  respective  complaints  and  on  the 
ground  that  the  court  was  "without  jurisdiction  of  the  parties 
or  the  subject  matter." 

Alfred  J.  Pritchard  and  others  were  allowed  to  intervene  in 
the  McGUvra  case  and  Frank  T.  Hunter  and  others  were  al- 
lowed to  intervene  in  the  Bressler  case  as  parties  complainant. 

The  Circuit  Court  did  not  pass  on  the  question  of  jurisdic- 
tion, saying,  on  page  401 : "  As  the  bills  fully  disclose  the  extent 
of  the  compldnants'  claims  to  relief,  it  results  that  the  de- 
murrers must  be  sustained  and  the  suits  dismissed  for  want  of 
equity."  161  Fed.  Rep.  398.  A  decree  was  entered  accord- 
ingly. The  Circuit  Court  of  Appeals,  however,  discussed  the 
question  of  jurisdiction,  and  said,  on  page  608: 

"The  Circuit  Court  was,  therefore,  without  jurisdiction  in 


76  OCTOBER  TERM,  1909. 

Opinion  of  the  Covirt.  215  U.  S. 

these  cases  and  the  bills  of  complaint  were  properly  dismissed. 
The  views  here  expressed  would  require  this  court  to  affirm 
the  decrees  of  the  Circuit  Court  dismissing  the  bills  of  com- 
plaint if  the  cases  were  considered  on  their  merits. 

^^The  decree  of  the  Grcuit  Court  is  affirmed."  164  Fed. 
Rep.  604. 

Mr,  Charles  K,  Jenner  and  Mr.  0.  C.  McGilvra  for  appel- 
lant. 

Mr.  Walter  P.  Bell,  Attorney  General  for  the  State  of  Wash- 
ington, and  Mr.  John  W.  Roberts  for  appellee. 

Mr.  Justice  McKenna,  after  stating  the  case  as  above,  de- 
livered the  opinion  of  the  court. 

The  appellants  are  citizens  of  the  State  of  Washington,  and 
rely,  therefore,  upon  the  existence  of  Federal  questions  to 
sustain  the  jurisdiction  of  the  Circuit  Court.  These  questions 
are  asserted  to  be  (and  we  give  the  language  of  counsel) :  "  (1) 
the  validity  and  effect  of  the  several  patents  of  the  United 
States  in  respect  to  the  claim  of  ownership  thereunder,  as  set 
forth  in  the  bill  of  complaint ;  (2)  the  invocation  of  the  protec- 
tion of  the  Fourteenth  Amendment  of  the  Federal  Constitu- 
tion by  these  plaintiffs  against  the  threatened  taking  of  their 
property''  by  "the  several  acts  of  the  legislature  of  the  State 
of  Washington  and  the  procedure  directed  thereunder." 

It  is  manifest  that  the  first  is  the  primary  question.  If  the 
appellants  did  not  derive  the  rights  contended  for  by  the 
patents,  they  have  no  rights  to  be  impaired,  even  assuming,  as 
we  have  assumed  in  this  discussion,  that  the  action  of  the 
State  has  proceeded  far  enough  to  be  a  trespass  upon  or  an  im- 
pairment of  them.  But  whether  such  rights  passed  involves 
the  construction  of  the  acts  of  Congress  under  which  the 
patents  issued  and  necessarily  of  the  effect  of  the  patents,  and 
presents  a  Federal  question,  if  prior  decisions  have  not  de- 


McGILVRA  V.  ROSS.  77 

215  U.  S.  Opinion  of  the  Court. 

fined  such  rights  and  removed  them  from  controversy.  This 
is  contended  by  appellees,  and  Shivdy  v.  Boiolby,  152  U.  S.  1, 
is  cited.  And,  as  we  have  seen,  the  Circuit  Court  of  Appeals 
took  this  view.  Appellants  attack  it  and  contend  that  the 
facts  of  Shivdy  v.  Bowlby  are  so  far  dififerient  from  those  in  the 
case  at  bar  as  to  make  that  case  inconclusive  of  the  questions 
presented  in  the  latter.  A  determination  of  the  scope  of 
Shivdy  v.  Bowlby  becomes  necessary.  The  controversy  in 
that  case  was  between  a  title  by  United  States  patent  under 
the  Oregon  Donation  Land  Law,  so  called,  being  the  act  of 
Congress,  September  27,  1850  (and  the  same  law  under  which 
the  title  in  the  Bressler  case  is  derived),  to  lands  bounded  by 
the  Columbia  River,  and  a  title  derived  under  the  act  of  the 
State  of  Oregon,  entitled  "  An  act  to  provide  for  the  sale  of  tide 
and  overflowed  lands  on  the  seashore  and  coast'*  to  lands  be- 
low high-water  mark  on  that  river.  The  issue,  therefore,  was 
accurately  presented  between  a  title  under  a  patent  of  the 
Uhited  States  and  one  conveyed  by  a  State  in  the  exercise  of 
its  dominion  over  lands  below  high-water  mark.  The  issue 
in  the  case  at  bar  is  exactly  the  same.  But  a  distinction  is 
pointed  out,  and  on  that  distinction  appellants'  contentions 
and  argiunents  are  based.  The  Shivdy  case  was  concerned 
with  shore  lands  within  the  ebb  and  flow  of  the  tide.  In  the 
case  at  bar  the  lands  border  on  navigable  waters,  but  not  on 
tidal  waters.  The  Shivdy  case,  it  is  therefore  contended,  as  we 
have  said,  is  not  applicable,  for,  it  is  said,  that  whenever  the 
"  court  in  deciding  said  cause  used  the  term '  navigable  waters ' 
in  discussing  the  case  then  before  it  said  term  meant  tidal 
waters,  for  the  question  of  rights  upon  tidal  waters  was  the 
only  question  therein  presented." 

The  argument  to  sustain  the  contention  is  not  confined  to  an 
analysis  of  the  case,  but  goes  beyond,  and  by  the  citation  of 
many  cases  seeks  to  determine  the  riparian  rights  of  appellants 
by  the  common  law  test  of  navigability,  to  wit,  the  ebb  and 
flow  of  the  tide.  The  contention  is  that  when  the  patents  were 
issued  to  the  respective  appellants  'Hhe  common  law  of  Eng- 


78  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

land  in  rdation  to  riparian  ownership  was  in  full  force  in  the 
Territory  of  Washington,  and,  in  the  absence  of  statutes  passed 
by  the  United  States,  changing,  modifjring  or  varying  the 
common  law  in  regard  to  grants  of  land,"  such  grants  carried, 
unless  there  was  an  express  reservation,  as  "appurtenances 
thereunto  belonging"  such  riparian  ownership,  and  from  this 
it  is  contended  that  appellants  "received  with  their  several 
patents  a  grant  in  fee  to  the  waters  "  of  Lakes  Union  and  Wash- 
ington, respectively,  "in  front  of  the  several  tracts  of  land  to 
the  middle  of  said  lakes."  We  will  not  review  the  reasoning 
by  which  this  contention  is  attempted  to  be  supported.  It  is 
enough  to  say  that  the  test  of  navigability  of  waters  insisted 
on  has  had  no  place  in  American  jurisprudence  since  the  de- 
cision in  the  case  of  The  Propeller  Genesee  Chief  v.  Fitzhugh, 
12  How.  443,  and  is  therefore  no  test  of  riparian  ownership. 
This  is  the  effect  of  Shivdy  v.  Bowlby,  152  U.  S.,  supra.  The 
whole  doctrine  is  there  displayed,  and  the  court  declared  (152 
U.  S.,  p.  1 1) ,  that  on  account  of  the  "  diversity  of  view  as  to  the 
scope  and  efifect  of  the  previous  decisions  of  this  court  upon  the 
subject  of  public  and  private  rights  in  lands  below  high-water 
mark  of  navigable  waters,"  it  appeared  "to  be  a  fit  occasion 
for  a  full  review  of  those  decisions  and  a  consideration  of  other 
authorities  upon  the  subject."  And  the  term  "navigable 
waters,"  as  there  used,  meant  waters  which  were  navigable  in 
fact.  The  definition  was  not  inadvertent  or  unnecessary.  It 
was  that  to  which  the  reasoning  conducted  and  which  became 
the  test  of  the  dominion  of  the  national  and  state  govern- 
ments over  shore  lands  and  the  rights  which  they  had  or  could 
convey.  Hence  this  conclusion  by  the  court  (p.  57):  "The 
title  and  rights  of  riparian  or  littoral  proprietors  in  the  soil 
below  high-water  mark,  therefore,  are  governed  by  the  laws  of 
the  several  States,  subject  to  the  rights  granted  to  the  United 
States  by  the  Constitution."  It  was  observed  that  the  United 
States,  while  it  held  the  country  as  a  Territory,  having  all  the 
powers  of  national  and  of  municipal  government,  might  have 
granted  for  appropriate  purposes  rights  and  titles  below  high- 


McGILVRA  t?.  ROSS.  79 

215  U.  S.  Opinion  of  the  Court. 

water  mark.  See  United  States  v.  Winans,  198  U.  S.  371; 
Prosser  v.  Northern  Pacific  R.  JR.,  152  U.  S.  59.  But,  it  was 
said,  that  they  had  never  done  so  by  general  laws,  but  had  con- 
sidered it  "as  most  in  accordance  with  the  interest  of  the 
people  and  with  the  object  for  which  the  Territories  were  ac- 
quired of  leaving  the  administration  and  disposition  of  the 
sovereign  rights  in  navigable  waters,  and  in  the  soil  under 
them,  to  the  control  of  the  States  respectively,  when  organized 
and  admitted  into  the  Union."  This  policy,  it  was  remarked, 
as  "to  navigable  waters  and  the  soils  under  them,  whether 
within  or  above  the  ebb  and  flow  of  the  tide,"  has  been  "con- 
stantly acted  upon."  And  hence  it  was  further  said:  "Grants 
by  Congress  of  portions  of  the  public  lands  within  a  Territory 
to  settlers  thereon,  though  bordering  on  or  bounded  by  naviga- 
ble waters,  convey,  of  their  own  force,  no  title  or  right  below 
high-water  mark,  and  do  not  impair  the  title  and  dominion  of 
the  future  State  when  created,  but  leave  the  question  of  the 
use  of  the  shores  by  the  owners  of  uplands  to  the  sovereign 
control  of  each  State,  subject  only  to  the  rights  vested  by  the 
Constitution  in  the  United  States."  The  conclusion  neces- 
sarily follows,  as  expressed  by  the  court,  that  the  State  may 
dispose  of  its  lands  under  navigable  waters  "free  from  any 
easement  of  the  upland  proprietor." 

Joy  V.  St.  Louis,  201  U.  S.  332,  is  to  the  same  effect.  See 
also  Scranton  v.  Wheeler,  179  U.  S.  141,  190;  United  States  v. 
Mission  Rock  Co,,  189  U.  S.  391 ;  Kansas  v.  Colorado,  206  U.  S. 
46-93.  In  the  latter  case  it  was  said,  as  a  deduction  from 
many  previous  cases,  including  Shvody  v.  Bowlby,  "that  each 
State  has  full  jurisdiction  over  the  lands  within  its  borders,  in- 
cluding the  beds  of  streams  and  other  waters."  Barney  v. 
Keokuk,  94  U.  S.  324,  338,  was  quoted  from  as  follows:  "And 
since  this  court,  in  the  case  of  The  Genesee  Chief,  12  How.  443, 
has  declared  that  the  Great  Lakes  and  other  navigable  waters 
of  the  country,  above  as  well  as  below  the  flow  of  the  tide,  are, 
in  the  strictest  sense,  entitled  to  the  denomination  of  navigable 
waters  and  amenable  to  the  admiralty  jurisdiction,  there  seems 


80  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 

to  be  no  sound  reason  for  adhering  to  the  old  rule  as  to  the 
proprietorship  of  the  beds  and  shores  of  such  waters.  It 
properly  belongs  to  the  States  by  their  inherent  sovereignty, 
and  the  United  States  has  wisely  abstained  from  extending 
(if  it  could  extend)  its  survey  and  grants  beyond  the  limits  of 
high  water." 

It  follows  from  these  views  that  the  Circuit  Court  of  Ap- 
peals rightly  decided  that  the  questions  presented  by  the  bill 
are  no  longer  open  to  discussion,  and  that  the  Circuit  Court 
was  without  jurisdiction.  But  the  Circuit  Court  of  Appeals, 
overlooking  the  fact  that  the  decree  was  not  of  dismissal 
simply,  but  on  the  merits,  affirmed  it.  To  correct  this  inadver- 
tence the  decree  of  the  Circuit  Court  of  Appeals  must  be  re- 
versed and  the  cause  remanded  to  the  Circuit  Court  with  di- 
rections to  set  aside  the  decree  on  the  merits  and  sustain  the 
demurrer  for  want  of  jurisdiction,  and  on  that  ground  dismiss 
the  suits.  This  will  enable  appellants  to  litigate  in  the  state 
courts  whatever  riparian  rights  they  may  have  under  the  laws 
of  the  State  and  the  constitutional  provisions  hereinbefore  set 

out. 

So  ordered. 

Mr.  Justice  Holmes  concurs  in  the  result. 


SYLVESTER  v,  THE  STATE  OF  WASHINGTON. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  WASH- 
INGTON. 

No.  40.    Argued  November  4,  6,  1909.— Decided  November  15, 1909. 

Where  in  the  state  court  plaintiff  in  error  set  up  the  invalidity  of  a  deed 
under  the  provisions  of  an  act  of  Congress  and  judgment  could  not  be 
rendered  against  him  without  sustaining  the  deed  this  court  has 
jurisdiction  under  §  709,  Rev.  Stat.  Anderson  v.  Carkins,  135  U.  S. 
483;  NiUt  v.  Knvt,  200  U.  S.  12. 


SYLVESTER  t;.  WASHINGTON.  81 

215  U.  S.  Argument  for  Plaintiff  in  Error. 

Where  CJongiess  appropriates  for  a  Territory  to  erect  buildings  the 
implication  is  that  the  Territory  must  control  the  land  on  which  the 
.  buildings  are  to  be  erected,  and  where  land  is  cheap  the  implied  au- 
thority will  not  be  limited  to  merely  leasing  the  land.  Qtia^e  whether 
an  organized  Territory  has  not  power  to  purchase  land  for  a  seat 
of  govomment. 

Under  the  Oregon  Donation  Act  of  September  27,  1850,  c.  76,  9  Stat. 
496,  as  amended  July  17,  1854,  c.  84,  §  2,  10  Stat.  305,  no  condition 
except  residence  for  four  years  was  necessary  to  validate  a  sale  by  a 
settler  before  a  patent. 

On  a  writ  of  error  where  the  rights  of  the  parties  depend  upon  the 
validity  of  a  deed  under  an  act  of  Congress  this  court  is  confined  to 
the  question  of  validity  under  the  statute  and  the  effect  of  the  deed, 
if  valid,  upon  the  later  rights  and  acquisitions  of  the  grantor  is  a 
matter  of  local  law;  and,  in  this  case,  the  court  will  not  disturb  the 
assumption  of  the  state  court  that  a  settler  giving  a  valid  deed  be- 
fore patent  perfected  the  title  and  obtained  the  patent  on  behalf  of 
his  grantee  or  else  that  the  patent  enured  to  the  benefit  of  the 
grantee. 

46  Washington,  585,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  George  Marvin  Savage  for  plaintiff  in  error: 
The  instrument  under  which  defendant  claims  title  was 
void  because  the  purported  grantors  had  nothing  but  a  "  squat- 
ter's right."  Under  the  Oregon  Donation  Law  neither  legal  nor 
equitable  title  vests  in  the  settler  before  his  full  compliance 
with  all  the  requirements  of  said  act.  Hall  v.  Riissdl,  101 
U.  S.  509;  Vance  v.  Burbank,  101  U.  S.  514;  Ore.  &  Cd,  R.  R. 
Co.  v.  United  States,  190  U.  S.  195;  United  States  v.  Ore.  &  Cat. 
R.  Co.,  133  Fed.  Rep.  954;  Cutting  v.  Cutting,  6  Fed.  Rep. 
262;  Henry  v.  Land  Co.,  83  Fed.  Rep.  748;  Hershberger  v. 
BleweU,  55  Fed.  Rep.  177;  Traver  v.  Tribou^  15  Fed.  Rep.  31. 

The  Oregon  state  courts  now  hold  to  the  doctrine  of  full 
compliance  being  necessary,  having  overruled  their  former  de- 
cisions in  the  recent  case  of  Quinn  v.  Ladd,  37  Orpgon,  261 
(59  Pac.  Rep.  459);  BuUene  v.  Garrison,  1  Wash.  Ter.  590; 
Maynard  v.  HiU,  1  Wash.  Ter.  327;  McSorley  v.  Hill,  27  Pac. 

VOL.  ccxv — 6 


82  OCTOBER  TERM,  1909. 

Argument  for  PlaintifF  in  Eiror.  215  U.  S. 

Rep.  554;  5.  C,  2  Wash.  Ter.  638;  Maynard  v.  Valentine,  2 
Wash.  Ter.  18.    The  decisions  of  the  Land  Department  also 
support  contentions.   AUen  Claim,  7  L.  D.  547;  Vetch  v.  Park 
14  L.  D.  490;  Vamer  Claim,  22  L.  D.  569;  Stone  v.  Conndl 
Heirs,  23  L.  D.  166. 

Under  the  act  of  July  26,  1894,  mere  residence  for  the  re- 
quired period  is  not  suflBicient.  The  settler  must  perfect  his 
inchoate  rights  by  conforming  to  all  the  requirements  of  the 
act.  Congress,  recognizing  this,  and  desiring  to  protect  dila- 
tory settlers,  on  July  26,  1894,  passed  an  act  extending  the 
time  within  which  final  proof  could  be  made  under  the  Oregon 
Donation  Act,  28  Stat.  122,  which  has  been  construed  to  be 
intended  for  the  relief  of  those  who  had  resided  continuously 
upon  and  cultivated  the  lands  specified  in  the  original  donation 
notifications,  but  had  through  mistake  or  negligence  omitted 
to  make  and  file  their  final  proofs  and  fully  establish  their 
rights  to  such  donations.  Oregon  &  C.  R.  R,  Co.  v.  United 
States,  190  U.  S.  195. 

See  circular  of  the  Department  of  the  Interior,  April  8 
1895,  20  L.  D.  290. 

The  rule  that  all  the  requirements  of  the  granting  pro- 
visions of  the  act  must  be  comphed  with  by  the  settler  before 
title  vests  is  not  confined  to  the  Oregon  Donation  Act.  It  is 
the  uniform  ruling  of  the  courts  upon  the  land  laws.  McCune 
V.  Es^,  118  Fed.  Rep.  280;  aff'd  199  U.  S.  388. 

A  homesteader  has  not  legal  title  before  final  proof.  United 
States  V,  Turner,  54  Fed.  Rep.  228. 

Decisions  of  United  States  courts  control.  Decisions  of 
state  courts  are  not  binding  in  cases  involving  the  validity  of 
conveyances  of  the  public  lands  of  the  United  States,  as  the 
iiuestions  when  title  passed,  and  whether  it  passed,  and  to 
whom,  depend  on  the  laws  of  the  United  States.  McCune  v. 
ff.s\v%  199  U.  S.  390;  Anderson  v.  Carkins,  135  U.  S.  486;  WHn 
cox  v,  Jackson,  13  Pet.  517;  Proebstel  v,  Hague,  15  Fed.  Rep. 
583;  Cunninghamv.  Krutz,  83  Pac-Rep.  109;  S.  C.,41  Wash. 
190. 


SYLVESTER  v.  WASHINGTON.  83 

215  U.  S.  Opinion  of  the  Court. 

The  Territory  was  guilty  of  laches.  Sylvester  and  wife  con- 
tinued to  reside  on  his  claim,  after  making  the  first  deed,  until 
after  the  patent;  residence  and  cultivation  were  only  necessary 
upon  some  part  of  the  claim.  United  States  v.  Tichenor,  12  Fed. 
Rep.  426. 

The  Territory,  with  full  knowledge,  permitted  him  to  prove 
up  and  estabUsh  his  legal  title  to  his  full  claim,  and  must  be 
held  to  have  waived  any  right  beyond  a  mere  possessory  right, 
subordinate  to  his  high  title.    HaU  v.  Russell^  101  U.  S.  512. 

The  state  court  based  its  decision  upon  the  cases  of  Barney 
V.  Dolph,  97  U.  S.  652;  Brazee  v.  Schofield,  124  U.  S.  495, 
and  Roeder  v.  Fouz,  all  of  which  can  be  distinguished  from 
this  case. 

The  deed  was  void  because  the  grantee  named  therein  was 
not  authorized  by  law  to  take  title  to  the  land. 

The  Territory  of  Washington,  having  no  attributes  to  sover- 
eignty, had  no  power  to  acquire  land.  Its  organic  act  gave  no 
power  to  acquire  title  to  land.  It  was  not  authorized  or  di- 
rected by  act  of  Congress  to  purchase,  or  take  title.  The  land 
was  pubUc  land  of  the  United  States.  The  appropriation  for 
public  buildings  did  not  give  the  Territory  power  to  purchase 
land.  Koch  v.  Vanderhoff,  9  Atl.  Rep.  772;  19  Op.  Atty.  Genl. 
34,  79;  §3736,  Rev.  Stat.;  United  States  v.  Tichenor,  12  Fed. 
Rep.  421. 

Mr.  W.  P,  Bell,  Attorney  General  of  the  State  of  Washing- 
ton, with  whom  Mr.  W.  V.  Tanner,  Mr.  W.  F.  MagiU  and  Mr. 
George  A .  Lee  were  on  the  brief,  for  defendant  in  error. 

Mb.  Justice  Holmes  deUvered  the  opinion  of  the  court. 

This  is  an  action  brought  by  the  heirs  of  one  Edmund 
Sylvester  to  recover  a  parcel  of  land  patented  to  him  by  the 
United  States,  under  the  Oregon  Donation  Act  of  Septem- 
ber 27,  1850,  c.  76,  9  Stat.  496,  and  the  amendments  to  the 
same.    The  State  took  up  the  defense  and  alleged  that  Sylves- 


84  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

ter  settled  on  the  land  on  February  1, 1850,  resided  there  con- 
tinuously for  more  than  four  years,  and  then  with  his  wife,  the 
plaintiff  Clara  Sylvester,  by  deed  of  bargain  and  sale  without 
covenants,  conveyed  the  land  to  the  Territory  of  Washington 
on  January  18,  1855.  This  conveyance  was  made  in  accord- 
ance with  a  Territorial  Act  of  January  9, 1855,  to  provide  for 
the  seat  of  government.  The  State  alleged  that  it  and  the  Ter- 
ritory, its  predecessor,  have  been  in  open  and  adverse  posses- 
sion ever  since,  and  relied  upon  the  statute  of  limitations  as 
well  as  upon  the  deed.  To  this  defense  there  is  a  very  verbose 
reply  to  the  following  effect. 

The  grantor  offered  the  land  to  the  Territory  as  a  gift  so  long 
as  it  should  be  used  as  a  site  for  the  seat  of  government  and  the 
territorial  capitol  building  erected  and  maintained  thereon. 
The  offer  was  accepted  and  an  act  was  passed  establishing  the 
seat  of  government  there,  provided  the  owners  or  claimants 
gave  a  release  of  the  land.  January  9,  1855.  Thereupon 
Sylvester  made  the  above  mentioned  deed,  which  the  plain- 
tiffs prefer  to  call  a  release — or  a  quitclaim,  as  it  was  called  in 
another  territorial  act  of  a  few  days  later,  January  28,  1855, 
accepting  the  deed.  At  the  time  of  Sylvester's  conveyance  he 
was  a  claimant,  but  had  not  compUed  with  the  requirements 
of  the  Donation  Act  in  other  respects  than  the  occupation  for 
more  than  four  years.  On  this  ground  it  is  allied  that  his 
deed  was  void.  On  July  1, 1858|  he  made  final  proof;  there  was 
no  adverse  claim,  and  on  May  3,  1860,  a  patent  was  issued  to 
him.  He  died  in  1887,  and  after  the  State  of  Washington  had 
been  admitted  to  the  Union,  at  its  request,  the  plaintiffs  exe- 
cuted another  deed  of  the  premises — but  this  deed  purported 
to  be  made  ''  upon  the  express  condition  that  the  tract  shall  be 
and  remain  the  site  of  the  capitol  of  Washington,  and  that  in 
the  event  of  the  location  of  the  capitol  elsewhere  than  upon 
his  tract,  these  presents  shall  be  null  and  void."  As  a  further 
ground  of  recovery,  it  is  alleged  that  the  State  has  ceased  to 
use  the  tract  for  the  seat  of  government.  Finally,  it  is  allied 
that  under  the  act  of  Congress  of  March  2, 1853,  c.  90, 10  Stat. 


SYLVESTER  v,  WASHINGTON.  85 

215  U.  S.  Opinion  of  the  Court. 

172,  organizing  Washington  Territory,  the  Territory  was  not 
authorized  or  permitted  to  acquire  title  to  the  land  in  suit.  It 
is  added  that  the  statute  of  limitations  did  not  run,  because  the 
plaintiffs  could  not  sue  the  Territory  or  State  until  authorized 
to  do  so  by  the  act  of  1895,  c.  95,  p.  188,  for  the  first  time. 

There  was  a  trial  and  judgment  for  the  State,  which  judg- 
ment was  affirmed  by  the  state  Supreme  Court.  46  Washing- 
ton, 585.  The  facts  found  were  substantially  those  set  forth 
in  the  pleadings,  except  that  it  was  held  to  be  proved  that 
Sylvester  filed  his  notification  of  settlement  with  the  Surveyor- 
General  of  Oregon  in  February,  1854,  before  the  date  of  his 
deed  to  the  Territory,  although,  as  has  been  shown,  his  final 
proof  and  his  receipt  of  a  patent  were  after  that  date.  The 
plaintiffs  specially  set  up  the  invalidity  of  his  deed  under  the 
Oregon  Donaticm  Act,  and  the  incapacity  of  the  Territory  to 
accept  it  under  the  act  by  which  it  was  organized  and  claimed 
title  on  these  grounds.  We  may  assimie  that  the  present  writ 
of  error  is  within  the  jurisdiction  of  this  court.  Anderson  v. 
Carkins,  135  U.  S.  483;  Nutt  v.  Knut,  200  U.  S.  12.  But  on 
the  merits  we  are  of  opinion  that  the  plaintiffs  have  no  case. 

We  see  no  ground  whatever  for  the  doubt  suggested  as  to 
the  power  of  the  Territory  to  accept  the  deed.  If  that  power 
was  not  incident  to  the  organization,  it  was  implied  by  §  13  of 
the  Organic  Act,  as  Congress  granted  five  thousand  dollars 
'  for  the  erection  of  suitable  buildings  at  the  seat  of  govern- 
ment.' For  that  purpose  it  was  necessary  that  the  Territory 
should  control  the  land,  and  especially  in  a  region  where  land 
was  so  cheap  as  it  was  in  those  days  the  implied  authority  can- 
not be  confined  to  the  taking  of  a  lease. 

On  the  other  point  it  was  said  that  the  settler  acquired  no 
rights  until  he  not  only  had  cultivated  the  land  for  four  years, 
but  had  otherwise  conformed  to  the  provisions  of  the  Oregon 
Donation  Act.  Section  4.  Whereas,  at  least,  he  had  not  made 
final  proof.  Oregon  &  California  R,  R,  v.  United  StateSy  No.  3, 
190  U.  S.  186, 195.  But  the  question  in  this  case  is  not  whether 
Sylvester  had  acquired  rights  that  the  Government  could  not 


86  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

impair,  or  in  fact  preserved  as  against  another  claimant,  as  in 
East  Central  Eureka  Mining  Co.  v.  Central  Eureka  Mining  Co,, 
204  U.  S.  266,  270,  271,  but  it  is  between  his  representatives 
and  his  grantee.  That  Sylvester  had  some  rights  cannot  be 
disputed,  and  is  recognized  by  §  8  of  the  act  ("  all  the  rights  of 
the  deceased'')-  He  was  in  possession  and  had  taken  lawful 
steps  toward  getting  the  title.  Those  rights  he  could  convey 
unless  prohibited  by  law.  But  by  the  amending  act  of  July  17, 
1854,  c.  84,  §  2, 10  Stat.  305,  the  proviso  in  §  4  of  the  Donation 
Act  making  contracts  for  the  sale  of  the  lands  before  patent 
void  was  repealed,  ''Provided,  That  no  sale  shall  be  deemed 
valid,  unless  the  vendor  shall  have  resided  four  years  upon  the 
land."  As  this  proviso  attached  no  condition  except  residence 
for  four  years  it  would  be  more  than  a  harsh  construction  to 
hold  that  the  validity  of  the  deed  still  depended  upon  the  ful- 
fillment of  the  other  requirements  for  a  perfect  right.  We  are 
of  opinion  that  the  deed  was  valid,  and  thus  the  question  is 
narrowed  to  the  effect  of  the  conveyance  upon  the  title  sub- 
sequently given  to  Sylvester  by  the  patent  of  the  United 
States.    See  Brazee  v.  Schofield,  124  U.  S.  495. 

But  the  questions  that  come  before  this  court  are  confined 
to  the  rights  of  the  parties  under  the  statutes  of  the  United 
States,  and  when  it  is  decided  that  Sylvester's  deed  was  valid 
under  these  statutes,  its  efifect  upon  his  later  acts  and  acquisi- 
tions would  seem  to  be  a  matter  of  local  law.  If  the  state 
court  assumed,  as  it  seems  to  have  assumed,  that  Sylvester's 
subsequent  making  of  final  proof  was  to  be  taken  to  have  been 
done  on  behalf  of  his  grantee,  and  thus  to  have  perfected  its 
equitable  right  to  the  land,  it  is  enough  to  say  that  we  see  no 
ground  for  disturbing  the  assumption.  See  Nixon  v.  Carco,  28 
Mississippi,  414.  If  the  state  Supreme  Court  concurred  with 
the  trial  court  in  holding  an  equitable  title  a  sufficient  answer 
to  the  plaintiff's  claim,  that  is  a  matter  with  which  we  have 
nothing  to  do.  Whether  the  decision  went  on  this  ground  or 
assumed  that  the  legal  title  also  enured  to  the  benefit  of  the 
State  does  not  appear.    If  the  latter  ground  were  adopted  we 


EL  PASO  &  N.  E.  RY.  v.  GUTIERREZ.  87 

215  U.  S.  SyUabuB. 

presume  that  it  could  not  be  because  of  the  form  of  the  deed  in 
the  absence  of  words  expressing  or  implying  warranty,  but 
would  be  peculiar  to  this  class  of  cases.  We  suppose  that,  in 
the  absence  of  a  statute  specially  dealing  with  the  matter, 
either  the  title  would  be  taken  to  relate  back,  or  it  would  be 
held  that  a  permitted  conveyance,  before  the  Government  has 
given  a  legal  title  to  any  one,  made  by  a  person  in  process  of 
acquiring  a  title  in  the  statutory  method,  would  be  taken  to 
have  contemplated  that  the  grantor  should  have  the  benefit 
of  what  was  done  afterwards  to  perfect  it.  Those  propositions 
we  are  not  called  upqn  to  discuss.  See  Landes  v.  Brant,  10 
How.  348;  United  States  v.  Clark,  200  U.  S.  601,  607;  Rev. 
Stat.,  §  2448. 

Other  matters  were  argued,  as,  for  instance,  whether  parol 
evidence  should  have  been  received  to  show  that  the  first  deed 
was  intended  to  be  conditional,  although  absolute  in  form;  the 
effect  of  the  second  deed  and  the  condition  that  it  expressed, 
the  statute  of  limitations  and  so  forth.  But  the  only  questions 
open,  on  the  most  liberal  interpretation,  are  those  that  we  have 
answered,  and  it  follows  without  more  that  the  judgment  must 
be  affirmed. 

Affirmed, 


■4««> 


EL  PASO  &  NORTHEASTERN  RAILWAY  COMPANY  v. 
GUTIERREZ,  ADMINISTRATRIX. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  TEXAS. 
No.  606.    Submitted  October  11,  1909.— Decided  November  15,  1909. 

Where  the  effect  of  the  judgment  of  the  state  court  is  to  deny  the  de- 
fense that  a  statute  of  a  Territory  is  a  bar  to  the  action,  a  claim  of 
Federal  right  is  denied  and  this  court  has  jurisdiction  under  §  709, 
Rev.  Stats.,  to  review  the  judgment.  Atckiaon^  Topeka  &  Santa  Fe 
Ry.  V.  Sowers,  213  U.  S.  56. 

The  power  of  Congress  to  regulate  conunerce  in  the  District  of  Colum- 
bia and  Territories  is  plenary  and  does  not  depend  on  the  commerce 


SS  OCTOBER  TERM.  1909. 

A;f:ua>  z.\  i  r  T^MmxiB  in  Ekror.  215  U.  S. 

dause,  aod  m  sumte  regulatiiig  sodi  commene  neoeaBarily  super- 
sedflB  m  territoiul  statute  on  the  sune  subjecC 

An  met  of  Coogreas  may  be  unconsdnitioitti  as  measured  by  the  oom- 
meree  clause,  aod  coDstitutkNial  as  meapurpd  by  the  power  to  govern 
the  District  of  Cohimbia  aod  the  Tcnitories.  and  the  test  of  separ^- 
bifity  is  whether  Congress  would  have  enacted  the  l^;tsiation  ex- 
duaively  for  the  District  and  the  Territories. 

The  rule  that  the  court  must  sustain  an  act  of  Congress  as  constitutional 
unle^  there  is  no  doubt  as  to  its  unconstitutionality  also  requires  the 
court  to  sust£un  the  act  in  so  far  as  it  is  possible  to  sustain  it. 

Tliis  court  did  not  in  its  decision  of  the  Employers*  Liability  CaseSf  207 
U.  S.  463,  hold  the  act  of  June  11,  1906,  c  3073,  34  Stat.  232,  un- 
constitutional so  far  as  it  related  to  the  District  of  Columbia  and  the 
Territories,  and  expressly  refused  to  interpret  the  act  as  applying 
only  to  such  employes  of  carriers  in  the  District  and  Territories  as 
were  engaged  in  interstate  commerce. 

The  evident  intent  of  Congress  in  enacting  the  Employers'  Liability 
Act  of  June  1 1, 1906,  was  to  enact  the  curative  provisions  of  the  law 
as  applicable  to  the  District  of  Columbia  and  the  Territories  imder 
its  plenary  power  irrespective  of  the  interstate  commerce  feature 
of  the  act,  and  although  unconstitutional  as  to  the  latter  as  held  in 
207  U.  S.  463,  it  is  constitutional  and  paramount  as  to  commerce 
wholly  in  the  District  and  Territories. 

The  Employers'  Liability  Act  of  June  11,  1906,  being  a  constitutional 
regulation  of  conmierce  in  the  District  of  Columbia  and  the  Terri- 
tories necessarily  supersedes  prior  territorial  legislation  on  the  same 
subject  and  non-compliance  by  the  plaintiff  employ^  with  a  pro- 
vision of  a  territorial  statute  (in  this  case  of  New  Mexico)  cannot  be 
pleaded  by  the  defendant  employer  as  a  bar  to  an  action  for  personal 
injuries. 

117  S.  W.  426,  affirmed,  and  Hyde  v.  Southern  Ry.  Co.,  31  App.  D.  C. 
approved. 

The  facts,  which  involve  the  constitutionality  of  the  Em- 
ployers' Liability  Law  of  June  11,  1906,  c.  3073,  34  Stat.  232, 
as  applied  to  the  Territories  of  the  United  States,  are  stated 
in  the  opinion. 

Mr.  W.  C,  Keegin,  Mr.  W.  A.  Hawkins  and  Mr.  John 
Franklin  for  plaintiff  in  error : 
Tliis  court  has  jurisdiction  to  review  the  judgment  of  the 


EL  PASO  A  N.  E.  RY.  v,  GUTIERREZ.  80 

215  IT.  S.  Argument  for  Defendant  in  Error. 

State  court  of  Texas;  the  plaintiff  in  error  as  defendant  below 
asserted  the  unconstitutionality  of  the  Employers'  Liability 
Act  and  that  this  case  was  controlled  by  the  statute  of  New 
Mexico.  The  denial  of  this  claim  was  the  denial  of  a  Federal 
right.  St.  Louis  &c.  Ry.  Co.  v.  Taylor,  210  U.  S.  281,  293; 
lU.  Cent.  R.  R.  Co.  v.  McKendree,  203  U.  S.  514.  The  statute 
of  New  Mexico  has  been  upheld  in  this  court.  A.,  T.  & 
Santa  Fe  Ry.  v.  Sowers,  213  U.  S.  55.  The  Employers'  Lia- 
bility Act  is  void  in  toto.  The  decision  of  this  court  in  207 
U.  S.  463,  forecloses  that  question.  The  statute  is  not  separ- 
able as  nothing  shows  that  Congress  would  have  enacted  it 
exclusively  as  to  the  Territories.  Sprague  v.  Thompson,  118 
U.  S.  90. 

Mr.  F.  6.  Morris  for  defendant  in  error: 

This  court  does  not  have  jurisdiction  of  the  appeal.  The 
New  Mexico  statute  did  not  create  a  right  of  action  but  only 
improved  conditions.  Klinger  v.  Missouri,  13  Wall.  257; 
Eustis  V.  BoUes,  150  U.  S.  361;  Beaupr6  v.  Noyes,  138  U.  S. 
397. 

The  decision  that  the  act  of  Congress  and  not  the  territorial 
statute  controlled  the  case  does  not  deny  full  faith  and  credit 
to  the  territorial  statute.  United  States  v.  Lynch,  137  U.  S. 
280;  Balto.  &  Pot.  R.  R.  Co.  v.  Hopkins,  130  U.  S.  210;  John- 
son  V.  New  York  Life  Ins.  Co.,  187  U.  S.  491;  Smithsonian 
Institution  v.  St.  John,  214  U.  S.  19. 

No  Federal  right  exists  under  a  territorial  statute  in  a  state 
court  which  will  support  a  writ  of  error  from  this  court  other 
than  that  provided  for  by  the  statute  requiring  it  to  be  given 
full  faith  and  credit.  A.,T.&  Santa  Fe  Ry.  v.  Sowers,  213 
U.  S.  55. 

The  Employers'  Liability  Act  is  within  the  power  of  Con- 
gress to  enact  so  far  as  applicable  to  the  District  of  Columbia 
and  the  Territories,  and  that  question  is  not  affected  by  the 
decision  of  this  court  in  207  U.  S.  463,  which  related  only  to 
the  act  as  applicable  to  the  States.    The  provisions  as  to  the 


90  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

District  of  Columbia  and  the  Territories  are  separable  from 
those  as  to  the  States  and  would  have  been  independently 
enacted  by  Congress.  Hyde  v.  Southern  Ry.  Co.,  31  App.  D.  C. 
466;  Vial  v.  Penniman,  103  U.  S.  714;  Diamond  Glue  Co.  v. 
United  States  Glue  Co,,  187  U.  S.  611;  Florida  Cent,  R.  R.  Co. 
y.Schvite,  103  U.S.  118. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

In  this  case  an  action  was  commenced  by  Enedina  Gutierrez, 
as  administratrix  of  the  estate  of  Antonio  Gutierrez,  in  the 
District  Court  of  El  Paso  County,  Texas,  against  the  El  Paso 
and  Northeastern  Railway  Company,  to  recover  damages 
because  of  the  death  of  the  plaintiff's  intestate  by  wrongful 
act  while  engaged  in  the  service  of  the  railway  company,  a 
common  carrier  in  the  Territory  of  New  Mexico,  on  June  22, 
1906.  By  way  of  special  plea  and  answer  the  railway  com- 
pany set  up  a  statute  of  the  Territory  of  New  Mexico,  wherein 
it  is  provided  that  no  actions  for  injuries  inflicting  death 
caused  by  any  person  or  corporation  in  the  Territory  shall 
be  maintained,  unless  the  person  claiming  damages  shall, 
within  ninety  days  after  the  infliction  of  the  injury  complained 
of  and  thirty  days  before  commencing  suit,  serve  upon  the 
defendant  an  affidavit  covering  certain  particulars  as  to  the 
injuries  complained  of,  and  containing  the  names  and  ad- 
dresses of  all  witnesses  of  the  happening  of  the  alleged  acts 
of  negligence.  Suit  must  be  brought  within  one  year,  and  in 
the  District  Court  of  the  Territory  in  and  for  the  county  in 
which  the  injuries  were  received,  or  where  the  injured  person 
resides;  or,  in  a  claim  against  a  corporation,  in  the  coimty  of 
the  Territory  where  the  corporation  has  its  principal  place 
of  business.  This  act  is  set  out  in  full  in  the  marginal  note  to 
the  case  of  Atchison,  Topeka  &  Santa  Fe  Ry,  Co,  v.  SorverSy 
213  U.  S.  55. 

The  special  answer  sets  forth  that  the  accident  happened 
in  the  Territory  of  New  Mexico,  while  the  statute  was  in  full 
force,  and  that  its  terms  and  provisions  were  not  complied  with. 


EL  PASO  A  N.  E.  RY.  v,  GUTIERREZ.  91 

215  U.  S.  Opinion  of  the  Court. 

To  the  special  answer  the  plaintiff  below  interposed  a  de- 
murrer, and  further,  by  way  of  supplemental  petition,  set 
forth  that  the  injuries  complained  of  happened  after  the  pas- 
sage of  the  so-called  Employers'  Liability  Act,  June  11,  1906, 
c.  3073,  34  Stat.  232.  This  act,  the  plaintiff  alleged,  con- 
trolled the  liability  of  the  defendant  in  the  case.  The  District 
Court  sustained  the  demurrer  of  the  plaintiff  to  that  part  of 
the  defendant's  answer  which  set  up  the  territorial  act  of 
New  Mexico,  to  which  ruling  the  railway  company  duly  ex- 
cepted. The  case  then  went  to  trial  to  a  jury  upon  issues 
made  concerning  the  liability  of  the  railway  company  under 
the  Federal  Employers'  Liability  Act  of  June  11,  1906. 
34  Stat.  232.  The  result  was  a  verdict  and  judgment  in  favor 
of  the  plaintiff  against  the  railway  company.  The  case  was 
then  taken  to  the  Court  of  Civil  Appeals  of  Texas,  and  that 
court  held  that  it  would  not  be  governed  by  the  territorial 
statutes,  and  that  the  Employers'  Liability  Act  of  June  11, 
1906,  was  unconstitutional,  upon  the  authority  of  Employers' 
Liability  Cases ^  207  U.  S.  463,  and  certain  cases  in  the  Texas 
Court  of  Appeals.  Upon  rehearing  a  majority  of  the  court 
held  that  the  provisions  of  the  New  Mexico  act  as  to  the 
presentation  of  notice  of  claim  for  damages  was  a  condition 
precedent  to  a  cause  of  action,  and  that  the  trial  court  there- 
fore erred  in  sustaining  plaintiff's  exception  to  that  part  of 
the  defendant's  answer  which  pleaded  the  territorial  act  and 
plaintiff's  failiure  to  present  her  claim  in  accordance  with  it. 
Ill  S.  W.  Rep.  159.  Thereupon  the  defendant  took  the  case 
to  the  Supreme  Court  of  Texas  by  writ  of  error,  and  that  court 
held  that  the  case  was  controlled  by  the  act  of  Congress  known 
as  the  Employers'  Liability  Act,  34  Stat.  232,  and  that  the 
same  was  constitutional,  and  therefore  held  that  the  judgment 
of  the  Court  of  Civil  Appeals  should  be  reversed,  and  the 
original  judgment  of  the  District  Court  affirmed.  117  S.  W. 
Rep.  426.  From  the  judgment  of  the  Supreme  Court  of  the 
State  a  writ  of  error  was  prosecuted  to  this  court. 

Among  other  errors  assigned  is  the  failure  of  the  Supreme 


92  OCTOBER  TERM,  1909. 

Opimon  of  the  Court.  215  U.  S. 

Court  ot  Texas  to  give  e£fect  to  the  defense  setting  up  the 
statute  of  New  Mexico  as  a  full  defense  to  the  action.  While 
the  Supreme  Court  of  Texas  in  its  opinion  conceded  that  if 
the  toritorial  act  of  New  Mexico  alone  controlled  the  action 
the  plainti£f  must  fail  for  non-compliance  with  its  require- 
ments, it  reversed  the  judgment  of  the  Court  of  Civil  Appeals, 
and  aflBrmed  the  judgment  ci  the  District  Court,  because  in 
its  opinion  the  liability  was  controlled  by  the  Employers' 
LialHlity  Act.  The  e£fect  of  this  judgment  of  the  Supreme 
Court  of  Texas  was  to  deny  the  defense  set  up  under  the 
territorial  act  as  a  complete  bar  to  the  action.  The  District 
Court  sustained  the  demurrer  to  the  plea  setting  up  this  act, 
and  thereby  denied  the  rights  specially  set  up  under  that 
statute,  the  Supreme  Court  of  Texas  overruled  the  Court  of 
Qvil  Appeals  and  affirmed  the  judgment  of  the  EKstrict  Court. 
It  thereby  necessarily  adjudicated  the  defense  claimed  under 
the  territorial  act  against  the  railway  company.  If  this  de- 
fense sets  up  a  Federal  right  within  the  meaning  of  §  709  of 
the  Revised  Statutes  of  the  United  States,  then  we  have 
jurisdiction  of  the  case.  Wabash  R,  R.  Co.  v.  Addberi  College 
of  Western  Reserve  UniversUy,  208  U.  S.  38, 44. 

That  the  claim  of  immunity  under  the  territorial  act,  be- 
cause of  the  failure  of  the  plaintiff  in  error  to  comply  with  its 
provisions  as  to  the  affidavit  within  ninety  days,  etc.,  pre- 
sented a  Federal  question  within  the  meaning  of  §  709  of  the 
Revised  Statutes,  was  decided  in  Atchison,  Topeka  &  Santa 
Fe  Ry.  Co.  v.  Sowers,  213  U.  S.  55,  in  which  case  it  was 
held  that  where  suit  was  brought  in  a  state  court  a  claim 
of  defense  under  the  provisions  of  the  New  Mexico  statute 
was  a  claim  of  Federal  right,  which,  when  adversely  adju- 
dicated, gave  jurisdiction  to  this  court  to  review  the  judg- 
ment. 

Coming  to  consider  the  merits:  This  court,  in  Atchison, 
Topeka  d-  Santa  Fe  Ry.  Co.  v.  Sowers,  213  U.  S.,  supra,  held 
that  in  order  to  give  due  faith  and  credit  to  the  territorial 
statute,  under  §  906  of  the  Revised  Statutes  of  the  United 


EL  PASO  &  N.  E.  RY.  v.  GUTIERREZ.  93 

215  U.  S.  Opinion  of  the  Court. 

States,  the  plaintiff  suing  in  a  State  must  show  compliance 
with  the  preliminaries  of  notice  and  demand  as  required  by 
the  territorial  law.  As  the  answer  in  the  present  case  set  up 
non-compliance  with  these  requisites,  and  the  state  court 
sustained  a  demurrer  thereto,  the  judgment  must  be  reversed, 
unless  the  state  court  was  right  in  denying  the  benefit  of  the 
territorial  act  thus  set  up,  because  the  Federal  Employers' 
Liability  Act  superseded  the  New  Mexico  law,  and  is  constitu- 
tional so  far  as  the  Territories  are  concerned. 

In  view  of  the  plenary  power  of  Congress  under  the  Consti- 
tution over  the  Territories  of  the  United  States,  subject  only 
to  certain  limitations  and  prohibitions  not  necessary  to  no- 
tice now,  there  can  be  no  doubt  that  an  act  of  Congress 
undertaking  to  regulate  commerce  in  the  District  of  Columbia 
and  the  Territories  of  the  United  States  would  necessarily 
supersede  the  territorial  law  regulating  the  same  subject. 

Is  the  Federal  Employers'  Liability  Act  of  June  11,  1906, 
unconstitutional  so  far  as  it  relates  to  common  carriers  en- 
gaged in  trade  or  commerce  in  the  Territories  of  the  United 
States?  It  has  been  suggested  that  this  question  is  foreclosed 
by  a  decision  of  this  court  in  the  Employers^  Liability  Cases, 
207  U.  S.  463.  In  that  case  this  court  held  that,  con- 
ceding the  power  of  Congress  to  regulate  the  relations  of 
employer  and  employ^  engaged  in  interstate  commerce,  the 
act  of  June  11, 1906,  c.  3073,  34  Stat.  232,  was  unconstitu- 
tional in  this,  that  in  its  provisions  regulating  interstate 
commerce  Congress  exceeded  its  constitutional  authority  in 
undertaking  to  make  employers  responsible,  not  only  to  em- 
ploy6B  when  engaged  in  interstate  commerce,  but  to  any  of 
its  employ^,  whether  engaged  in  interstate  commerce  or  in 
commerce  wholly  within  a  State.  That  the  unconstitution- 
ality of  the  act,  so  far  as  it  relates  to  the  District  of  Columbia 
and  the  Territories,  was  not  determined  is  evident  from  a 
consideration  of  the  opinion  of  the  court  in  the  case.  In 
answering  the  suggestion  that  the  words  "any  employ^"  in 
the  statute  should  be  so  read  as  to  mean  only  employes  en- 


94  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

gaged  in  interstate  commerce,  Mr.  Justice  White,  delivering 
the  opinion  of  the  court,  said : 

"  But  this  would  require  us  to  write  into  the  statute  words 
of  limitation  and  restriction  not  found  in  it.  But  if  we  could 
bring  ourselves  to  modify  the  statute  by  writing  in  the  words 
suggested  the  result  would  be  to  restrict  the  operation  of  the 
act  as  to  the  District  of  Columbia  and  the  Territories.  We 
say  this  because  immediately  preceding  the  provision  of  the 
act  concerning  carriers  engaged  in  commerce  between  the 
States  and  Territories  is  a  clause  making  it  applicable  to 
'every  common  carrier  engaged  in  trade  or  commerce  in  the 
District  of  Columbia  or  in  any  Territory  of  the  United  States.' 
It  follows,  therefore,  that  common  carriers  in  such  Territories, 
even  although  not  engaged  in  interstate  commerce,  are  by  the 
act  made  liable  to  '  any '  of  their  employes,  as  therein  defined. 
The  legislative  power  of  Congress  over  the  District  of  Columbia 
and  the  Territories  being  plenary  and  not  depending  upon 
the  interstate  conmierce  clause,  it  results  that  the  provision 
as  to  the  District  of  Columbia  and  the  Territories,  if  standing 
alone,  could  not  be  questioned.  Thus  it  would  come  to  pass, 
if  we  could  bring  ourselves  to  modify  the  statute  by  writing 
in  the  words  suggested;  that  is,  by  causing  the  act  to  read 
'any  employ^  when  engaged  in  interstate  commerce,'  we  would 
restrict  the  act  as  to  the  District  of  Columbia  and  the  Terri- 
tories, and  thus  destroy  it  in  an  important  particular.  To 
write  into  the  act  the  qualif3ring  words,  therefore,  would  be 
but  adding  to  its  provisions  in  order  to  save  it  in  one  aspect, 
and  thereby  to  destroy  it  in  another;  that  is,  to  destroy  in 
order  to  save  and  to  save  in  order  to  destroy."  207  U.  S. 
500. 

A  perusal  of  this  portion  of  the  opinion  makes  it  evident 
that  it  was  not  intended  to  hold  the  act  unconstitutional  in 
so  far  as  it  related  to  the  District  of  Columbia  and  the  Terri- 
tories, for  it  is  there  suggested  that  to  interpolate  in  the  act 
the  qualifying  words  contended  for  would  destroy  the  act  in 
respect  to  the  District  of  Columbia  and  the  Territories  by 


EL  PASO  &  N.  E.  RY.  v.  GUTIERREZ.  95 

215  U.  S.  Opinion  of  the  Court. 

limiting  its  operation  in  a  field  where  Congress  had  plenary 
power,  and  did  not  depend  for  its  authority  upon  the  inter- 
state commerce  clause  of  the  Constitution.  The  act  in  ques- 
tion is  set  forth  in  full  in  a  note  to  Employers^  Liability  Cases, 
207  U.  S.  463,  490.  We  are  concerned  in  the  present  case 
with  its  first  section  only.   This  section  reads : 

"That  every  common  carrier  engaged  in  trade  or  commerce 
in  the  District  of  Columbia,  or  in  any  Territory  of  the  United 
States,  or  between  the  several  States,  or  between  any  Terri- 
toiy  and  another,  or  between  any  Territory  or  Territories 
and  any  State  or  States,  or  the  District  of  Columbia,  or  with 
foreign  nations,  or  between  the  District  of  Columbia  and  any 
State  or  States  or  foreign  nations,  shall  be  liable  to  any  of  its 
employes,  or,  in  the  case  of  his  death,  to  his  personal  repre- 
sentative for  the  benefit  of  his  widow  and  children,  if  any ;  if 
none,  then  for  his  parents;  if  none,  then  for  his  next  of  kin 
dependent  upon  him,  for  all  damages  which  may  result  from 
the  negligence  of  any  of  its  officers,  agents  or  employes,  or  by 
reason  of  any  defect  or  any  insufficiency  due  to  its  negUgence 
in  its  cars,  engines,  appliances,  machinery,  track,  roadbed, 
ways  or  works.'' 

A  perusal  of  the  section  makes  it  evident  that  Congress  is 
here  dealing,  first,  with  trade  or  commerce  in  the  District  of 
Columbia  and  the  Territories;  and,  second,  with  interstate 
commerce,  commerce  with  foreign  nations,  and  between  the 
Territories  and  the  States.  As  we  have  already  indicated,  its 
power  to  deal  with  trade  or  commerce  in  the  District  of  Colum- 
bia and  the  Territories  does  not  depend  upon  the  authority  of 
the  interstate  commerce  clause  of  the  Constitution.  Upon 
the  other  hand,  the  regulation  sought  to  be  enacted  as  to 
commerce  between  the  States  and  with  foreign  nations  de- 
pends upon  the  authority  of  Congress  granted  to  it  by  the 
Constitution  to  regulate  commerce  among  the  States  and 
with  foreign  nations.  As  to  the  latter  class,  Congress  was 
dealing  with  a  liabiUty  ordinarily  governed  by  state  statutes, 
or  controlled  by  the  common  law  as  administered  in  the 


96  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

several  States.  The  Federal  power  of  regulation  within  the 
States  is  limited  to  the  right  of  Congress  to  control  transac- 
tions of  interstate  commerce;  it  has  no  authority  to  regulate 
commerce  wholly  of  a  domestic  character.  It  was  because 
Congress  had  exceeded  its  authority  in  attempting  to  regu- 
late the  second  class  of  commerce  named  in  the  statute  that 
this  court  was  constrained  to  hold  the  act  unconstitutional. 
The  act  undertook  to  fix  the  liability  as  to  "any  employ^," 
whether  engaged  in  interstate  commerce  or  not,  and,  in  the 
terms  of  the  act,  had  so  interwoven  and  blended  the  regula- 
tion of  liability  within  the  authority  of  Congress  with  that 
which  was  not  that  the  whole  act  was  held  invalid  in  this 
respect. 

It  is  hardly  necessary  to  repeat  what  this  court  has  often 
affirmed,  that  an  act  of  Congress  is  not  to  be  declared  invalid 
except  for  reasons  so  clear  and  satisfactory  as  to  leave  no 
doubt  of  its  unconstitutionality.  Futhermore,  it  is  the  duty 
of  the  court,  where  it  can  do  so  without  doing  violence  to  the 
terms  of  an  act,  to  construe  it  so  as  to  maintain  its  constitu- 
tionality; and,  whenever  an  act  of  Congress  contains  unob- 
jectionable provisions  separable  from  those  found  to  be 
unconstitutional,  it  is  the  duty  of  this  court  to  so  declare, 
and  to  maintain  the  act  in  so  far  as  it  is  valid.  It  was  held 
in  the  Employers*  Ldability  Cases  that  in  order  to  sustain  the 
act  it  would  be  necessary  to  write  into  its  provisions  words 
which  it  did  not  contain. 

Coming  to  consider  the  statute  in  the  light  of  the  accepted 
rules  of  construction,  we  are  of  opinion  that  the  provisions 
with  reference  to  interstate  commerce,  which  were  declared 
unconstitutional  for  the  reasons  stated,  are  entirely  separable 
from  and  in  nowise  dependent  upon  the  provisions  of  the  act 
regulating  commerce  within  the  District  of  Columbia  and  the 
Territories.  Certainly  these  provisions  could  stand  in  sepa- 
rate acts,  and  the  right  to  regulate  one  class  of  liability  in 
nowise  depends  upon  the  other.  Congress  might  have  regu- 
lated the  subject  by  laws  applying  alone  to  the  Territories, 


. 


EL  PASO  &  N.  E.  RY.  v,  GUTIERREZ.  97 

215  U.  S.  Opinion  of  the  Court. 

and  left  to  the  various  States  the  regulation  of  the  subject- 
matter  within  their  borders,  as  had  been  the  practice  for 
many  years. 

It  remains  to  inquire  whether  it  is  plain  that  Congress 
would  have  enacted  the  legislation  had  the  act  been  limited 
to  the  regulation  of  the  liability  to  employ^  engaged  in 
coDMnerce  within  the  District  of  Columbia  and  the  Territories. 
If  we  are  satisfied  that  it  would  not,  or  that  the  matter  is 
in  such  doubt  that  we  are  unable  to  say  what  Congress 
would  have  done  omitting  the  imconstitutional  feature,  then 
the  statute  must  fall.  Illinois  Central  R.  R.  Co,  v.  McKen- 
dree,  203  U.  S.  514;  Employers'  Liability  Cases,  207  U.  S. 
supra. 

When  we  consider  the  purpose  of  Congress  to  regulate  the 
liability  of  employer  to  employ^,  and  its  evident  intention 
to  change  certain  rules  of  the  common  law  which  theretofore 
prevailed  as  to  the  responsibility  for  negligence  in  the  con- 
duct of  the  business  of  transportation,  we  think  that  it  is 
apparent  that  had  Congress  not  undertaken  to  deal  with 
this  relation  in  the  States  where  it  had  been  regulated  by  local 
law,  it  would  have  dealt  with  the  subject  and  enacted  the 
curative  provisions  of  the  law  applicable  to  the  District  of 
Columbia  and  the  Territories  over  which  its  plenary  power 
gave  it  the  undoubted  right  to  pass  a  controlling  law,  and  to 
make  uniform  regulations  governing  the  subject. 

Bearing  in  mind  the  reluctance  with  which  this  court  inter- 
feres with  the  action  of  a  coordinate  branch  of  the  Govern- 
ment, and  its  duty,  no  less  than  its  disposition,  to  sustain 
the  enactments  of  the  national  legislature,  except  in  clear 
cases  of  invalidity,  we  reach  the  conclusion  that  in  the  aspect 
of  the  act  now  under  consideration  the  Congress  proceeded 
within  its  constitutional  power,  and  with  the  intention  to 
regulate  the  matter  in  the  District  and  Territories,  irrespec- 
tive of  the  interstate  commerce  feature  of  the  act. 

While  not  binding  as  authority  in  this  court,  we  may  note 
that  the  act,  so  far  as  it  relates  to  the  District  of  Columbia, 
VOL.  ccxv — 7 


98  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 

was  sustained  in  a  well-considered  opinion  by  the  C!ourt  of 
Appeals  of  the  District  of  Columbia.    Hyde  v.  Southern  Ry. 
Co,,  31  App.  D.  C.  466. 
The  judgment  of  the  Supreme  Court  of  Texas  is 

Affirmed. 


*•■ 


INTERSTATE  COMMERCE  COMMISSION  v,  STICKNEY 
AND  OTHERS,  RECEIVERS  OF  THE  CHICAGO  GREAT 
WESTERN  RAILWAY  COMPANY. 

APPEAL   FROM  THE  CIRCUIT  COURT   OF  THE   UNITED   STATES 

FOR  THE   DISTRICT   OF  MINNESOTA. 

No.  251.     Argued  October  12,  1909.— Decided  November  29, 1909. 

A  carrier  may  charge  and  receive  compensation  for  services  that  it  may 
render,  or  procure  to  be  rendered,  off  its  own  line,  or  outside  of  the 
mere  transportation  thereover. 

Where  the  terminal  charge  is  reasonable  it  cannot  be  condemned,  or  the 
carrier  charging  it  required  to  change  it  because  prior  chai^ges  of 
connecting  carriers  make  the  total  rate  unreasonable. 

In  determining  whether  the  charge  of  a  terminal  company  is  or  is  not 
reasonable  the  fact  that  connecting  carriers  own  the  stock  of  the 
terminal  company  is  immaterial,  nor  does  that  fact  make  the  lines 
of  the  terminal  company  part  of  the  lines  or  property  of  such  connect- 
ing carriers. 

The  inquiry  authorized  by  §  15  of  the  Hepburn  Act  of  June  29,  1906, 
c.  3591,  34  Stat.  584,  relates  to  all  charges  made  by  the  carrier;  and, 
on  such  an  inquiry,  the  carrier  is  entitled  to  have  a  finding  that  a 
particular  charge  is  unreasonable  before  he  is  required  to  change  it. 

Where  the  charge  of  a  terminal  company  is  in  itself  reasonable  the 
wrong  of  a  shipper  by  excessive  aggregate  charges  should  be  cor- 
rected by  proceedings  against  the  connecting  carrier  guilty  of  the 
wrong. 

The  convenience  of  the  commission  or  the  court  is  not  the  measure  of 
justice,  and  will  not  justify  striking  down  a  terminal  charge  when 
the  real  overcharge  is  the  fault  of  a  prior  carrier. 

164  Fed.  Rep.  638,  affirmed. 


INTERSTATE  COMMERCE  COMM.  v.  STICKNEY.  99 
215  U.  S.  Argument  for  Appellant. 

On  December  10,  1907,  the  Interstate  Commerce  Commis- 
sion entered  an  order  requiring  certain  railroads  running  into 
Chicago  to  cease  and  desist  from  making  a  terminal  charge  of 
two  doDars  per  car  for  the  transportation  of  live  stock  beyond 
the  tracks  of  said  railroads  in  Chicago,  and  for  delivery  thereof 
at  the  Union  Stock  Yards,  and  requiring  them  to  establish  and 
put  in  force  for  said  services  a  charge  of  one  doUar  per  car. 
Compliance  with  this  order  was  postponed  by  the  commission 
until  May  15,  1908.  On  May  7,  1908,  the  appeUees  filed  this 
bill  in  the  Circuit  Court  of  the  United  States  for  the  District  of 
Minnesota,  to  restrain  the  enforcement  of  said  order,  averring 
that  the  actual  cost  to  them  for  such  terminal  services  ex- 
ceeded in  each  instance  the  simi  of  two  dollars  per  car,  and 
that  the  companies  were  making  delivery  at  a  charge  less  than 
such  actual  cost;  that  therefore  the  reduction  of  the  charge  by 
the  commission  to  one  dollar  per  car  was  unreasonable,  oppres- 
sive and  unlawful.  A  hearing  was  had  before  three  judges  of 
the  Eighth  Circuit  and  a  restraining  order  entered  as  prayed 
for  by  the  railroad  companies,  from  which  order  an  appeal  was 
taken  to  this  court. 

Mr.  Wade  H,  EUiSy  Assistant  to  the  Attorney  General,  and 
Mr.  S,  H.  CowaUy  special  attorney,  for  the  appellant : 

For  the  history  of  this  controversy  before  the  courts  and  the 
commission  see  Keenan  v.  Atchison  &  C.  R.  R.  Co.,  64  Fed. 
Rep.  992;  Walker  v.  Keenan,  73  Fed.  Rep.  755;  Reports,  7 1.  C. 
C.  513,  and  555a;  Int.  Com.  Comm.  v.  C,  B.  &  Q.  R.  R. 
Co.,  98  Fed.  Rep.  173;  S.  C,  103  Fed.  Rep.  249;  S.  C,  186 
U.  S.  320;  CatOe  Raisers'  Assn.  v.  C,  B.  &  Q.  R.  R.  Co.,  10 
I.  C.  C.  83,  and  11  I.  C.  C.  296;  Commodity  Rates  St.  Louis  to 
Texas  Paints,  11 1.  C.  C.  238;  CatUe  Raisers'  Assn.  v.  C,  B.  & 
Q.  R.  R.  Co.,  12 1.  C.  C.  507;  and  this  case  below,  164  Fed.  Rep. 
638. 

This  case  is  even  stronger  for  the  commission  than  that  in 
which  the  terminal  charge  was  condemned  in  186  U.  S.  320. 
The  power  of  the  commission  to  make  orders  such  as  the  one  in- 


100  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

volved  is  legislative  and  an  order  should  not  be  set  aside  by 
the  courts  unless  it  violates  property  rights  guaranteed  by  the 
Constitution.  Maximum  Rate  Cases,  167  U.  S.  479;  Reagan  v. 
Farmers'  L.  A  T.  Co.,  154  U.  S.  362;  KnoxviUe  v.  Water  Co., 
212  U.  S.  1 ;  WtUcox  v.  Consol.  Gas  Co.,  212  U.  S.  19;  PrerUis  v. 
Atlantic  Coast  Line,  211  U.  S.  210;  Hom^e  Telephone  Co.  v. 
Los  Angeles,  211  U.  S.  265;  Honolulu  Transit  Co.  v.  Hatoaii, 
211  U.  S.  282. 

Under  the  old  law  the  function  of  the  Interstate  Commerce 
Commission  was  in  its  nature  judicial.  It  passed  upon  the 
reasonableness  of  existing  rates  and  the  courts  reviewed  its 
conclusions  just  as  they  review  those  of  an  inferior  judicial 
tribunal,  treating  the  commission  as  a  referee  of  the  Circuit 
Courts  of  the  United  States.  See  37  Fed.  Rep.  614;  New  Or- 
leans &  Texas  Pacific  Ry.  v.  The  Interstate  Commerce  Commis- 
sion, 162  U.  S.  184 ;  Maximum  Rate  Cases,  167  U.  S.  479.  Under 
the  act  as  now  amended  the  commission  fixes  the  rate  and  the 
courts  have  the  same  authority  to  review  that  they  would  if 
the  rate  had  been  fixed  by  Congress  itself.  The  so-called 
"Court  Review"  amendment,  which  is  embodied  in  the  Hep- 
bum  Act,  is  merely  declaratory.  The  only  thing  added  is  the 
venue  and  the  express  authorization  of  suits  against  the  com- 
mission as  a  representative  of  the  Government. 

It  is  not  the  reasonableness  of  the  rate  which  is  now  before 
the  coiut;  that  question  is  submitted  exclusively  to  the  com- 
mission. The  rate  fixed  by  the  commission  may  in  the  judg- 
ment of  the  court  be  unreasonable  and  yet  it  will  not  be  de- 
clared unlawful  unless  it  is  so  unreasonable  as  to  constitute  a 
confiscation  of  property.  KnoxviUe  v.  Water  Co.,  212  U.  S.  1; 
San  Diego  Land  &  Town  Co.  v.  National  City,  174  U.  S.  739, 754. 

The  commission  did  not  err  in  considering  the  terminal 
charge  and  the  through  rates  together.  That  was  settled  in  the 
C,  B.  &  Q.  Case,  186  U.  S.  320,  and  there  has  been  no  change 
since  then.  The  sole  result  of  the  terminal  charge  is  to  in- 
crease the  cost  to  the  shipper  for  the  same  service.  Nor  did 
the  Hepburn  Act  since  passed  alter  the  situation.    In  neither 


INTERSTATE  COMMERCE  COMM.  v.  STICKNEY.    101 

215  U.  S.  Argument  for  Appellant. 

case  has  there  been  an  obligation  to  make  a  terminal  charge. 
The  raiboads  have  created  the  Union  Stock  Yards  and  made 
it  their  depot  and  the  only  available  place  for  delivery  of  live 
stock  in  Chicago.  It  is  the  greatest  live  stock  market  in 
America  and  the  other  depots  they  have  established  are  paper 
depots  and  no  real  terminal  service  exists.  It  is  a  pretense  for 
the  terminal  charge.  Covington  Stock  Yards  v.  Keith,  139 
U.  S.  128.  No  charge  above  one  dollar  per  car  is  justifiable. 
Putting  the  two  dollars  terminal  charge  on  at  Chicago  and  not 
at  other  points  made  an  unjust  discrimination  against  Chicago 
and  is  not  justifiable. 

The  order  does  not  violate  constitutional  rights  even  if  one 
doUar  is  less  than  the  cost  of  terminal  service. 

The  rule  adopted  below  is  that  where  railroad  companies 
publish  a  teminal  charge  for  terminal  service,  and  the  com- 
mission is  called  upon  to  declare  whether  or  not  it  is  reason- 
able, the  commission  must,  as  a  matter  of  law,  determine  this 
question  solely  by  the  cost  of  the  terminal  service,  independent 
of  the  fact  that  the  through  rate  already  includes  compen- 
sation for  the  terminal  service  and  independent  of  the  fact 
that  the  transaction  as  a  whole  is  profitable  to  the  roads. 

This  is  not  sustained  by  reason  or  authority.  To  uphold  it 
is  to  say  that  the  railroads  can  charge  twice  for  the  same  ser- 
vice, and  the  commission  is  without  power  to  strike  off  the 
charge  which  is  last  put  on.  Even  if  the  railroads  had  in  this 
case,  actually  and  in  good  faith,  separated  the  terminal  service 
from  the  through  service,  and  the  terminal  charge  from  the 
through  charge,  the  commission  could  reduce  the  terminal 
charge  if  they  found  that  the  through  charge  was  high  enough 
to  include  it. 

But  the  railroads  have  not  separated  these  two  services  and 
charges.  They  cannot  separate  the  services  because  a  ship- 
ment of  live  stock  from  the  point  of  origin  to  the  Union  Stock 
Yards  is  one  transaction  and  inseparable. 

If  a  carrier  adds  a  charge  for  a  pretended  separate  service, 
which  is  already  included  in  another  service  for  which  he  is 


102  OCTOBER  TERM,  1909. 

Argument  for  Appellee.  215  U.  S. 

amply  paid,  the  commission  may  reduce  the  extra  charge, 
even  to  a  point  below  the  cost  of  the  pretended  separate  ser- 
vice. Southern  Railroad  Co.  v.  The  SL  Louis  Hay  &  Grain  Co., 
214  U.  S.  297,  distinguished. 

The  cost  of  a  particular  service  is  not  a  proper  test  of  the 
reasonableness  of  the  charge  for  it  when  the  service  performed 
is  part  of  a  larger  transaction.  Minn.  &  St.  Paul  R.  R.  v. 
Minnesota,  186  U.  S.  257,  267;  St.  Louis  <k  S.  F.  R.  R.  Co.  v. 
GiH,  156  U.  S.  649.  See  also  Atlantic  Coast  Line  R.  R.  Co. 
V.  N.  C.  Corp.  Com.,  260  U.S.I;  Cav.  &  Lex.  Turnpike  Co.  v. 
Sanford,  164  U.  S.  596;  A.  <k  V.  R.  R.  Co.  v.  Railroad  Com.  of 
Miss.,  203  U.  S.  496;  Railroad  Co.  v.  WeU  &  Neoille,  96  Texas, 
408. 

In  the  present  case,  even  if  one  dollar  per  car  be  below  the 
cost  of  the  particular  service,  the  railroads  cannot  complain, 
since  the  whole  charge  for  the  whole  service  is  admittedly 
profitable. 

It  is  not  shown  that  the  commission's  allowed  charge  of 
one  dollar  per  car  is  less  than  cost  of  terminal  service.  The 
commission's  order  applies  only  to  whole  transaction  from 
point  of  origin  and  as  so  considered  the  charge  is  not  below 
cost. 

Every  intendment  of  law  and  fact  should  avail  to  support 
the  order  of  the  commission. 

When  questions  of  fact  are  submitted  to  executive  or  ad- 
ministrative oflScers  of  the  Government  their  conclusions  are 
final.  When  questions  so  submitted  involve  both  fact  and  law 
the  conclusion  will  not  ordinarily  be  disturbed  by  the  courts. 
Even  when  a  question  of  law  only  is  submitted  to  other  de- 
partments the  courts  will  make  every  presumption  in  favor 
of  the  interpretation  reached.  Bales  &  Guild  Co.  v.  Payne, 
194  U.  S.  106;  Marquez  v.  FrMe,  101  U.  S.  473. 

Mr.  William  D.  McHugh  and  Mr.  Walker  D.  Hines  for  ap- 
pellee : 
The  railroad  companies  have  divided  their  said  rates  and 


INTERSTATE  COMMERCE  COMM.  v.  STICKNEY.    103 

215  U.  S.  Argument  for  Appellee. 

have  made  a  distinct  charge  for  transportation  from  the  points 
of  shipment  to  Chicago,  and  a  separate  terminal  charge  for 
delivery  to  the  stock  yards,  a  point  beyond  the  lines  of  the 
respective  carriers. 

The  separate  terminal  charge  of  two  doUars  per  car  made  by 
the  railroad  companies  for  the  delivery  by  them  of  live  stock 
to  the  stock  yards,  a  point  beyond  the  lines  of  their  respective 
railroads,  is  not  excessive  since  it  is  less  than  the  actual  cost  to 
the  railroads  for  the  performance  of  such  service. 

Each  appellee  had  the  right  to  divide  the  charge  for  trans- 
portation so  as  to  have  one  rate  from  point  of  shipment  to  a 
point  on  its  tracks  in  Chicago,  and  a  separate  charge  thence  to 
the  stock  yards.  Walker  v.  Keenan,  73  Fed.  Rep.  755;  S.  C, 
7  I.  C.  C.  Rep.  548;  §  6  of  the  Act  to  Regulate  Commerce; 
Interstate  Comm,  Comm.  v.  C,  B.  &  Q.  R,  R,  Co,,  186  U.  S. 
320,  335. 

The  commission's  order  is  contrary  to  the  Constitution. 
Amendment  V,  and  see  as  to  right  of  carrier  to  compensation 
for  additional  service.  So,  Ry,  Co.  v.  St.  Louis  Hay  Co.,  214 
U.  S.  297,  301. 

There  is  no  authority  for,  nor  do  cases  cited  by  appellant 
sustain  proposition  that  in  order  to  set  aside  a  rate  prescribed 
by  the  commission,  the  carrier  must  show  confiscation  as  to 
all  its  business. 

The  commission's  order  was  made  under  clear  error  of  law. 

The  courts  have  power  to  set  aside  any  order  of  the  commis- 
fflon  not  conforming  to  the  statute.  As  to  the  power  conferred 
on  the  commission  by  the  statute,  see  Vol.  2,  Hearings  Before 
Senate  Interstate  Commerce  Committee,  pp.  1662-1674.  The 
power  of  the  court  to  review  on  mixed  questions  of  law  and 
fact,  or  of  law  alone,  may  be  exercised  without  regard  as  to 
whether  a  constitutional  right  has  been  violated. 

Judicial  intervention  is  expressly  contemplated  by  the  act 
itself  and  in  this  case  is  especially  appropriate  because  the 
regulation  is  of  vested  rights  and  not  of  matters  wholly  under 
power  of  Government.    The  right  of  owners  of  railroads  to 


104  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

adequate  protection  exists  independently  of  consent  of  the 
Government. 

Mr.  Justice  Brewer,  after  making  the  foregoing  statement, 
delivered  the  opinion  of  the  court. 

The  controversy  as  to  this  terminal  charge  has  been  of  long 
duration.  A  history  of  it  antecedent  to  the  present  litigation 
is  to  be  found  in  Interstate  Commerce  Commission  v.  C,  B.  & 
Q,  R,  R.  Company,  186  U.  S.  320. 

It  is  well  to  understand  the  precise  question  which  is  pre- 
sented in  this  case.  That  question  is  the  validity  of  the  ter- 
minal charge  of  two  dollars  per  car.  The  report  of  the  com- 
mission opens  with  this  statement:  "The  subject  of  this 
complaint  is  the  so-called  terminal  charge  of  $2  per  car  imposed 
by  the  defendants  for  the  delivery  of  carloads  of  live  stock  at 
the  Union  Stock  Yards  in  Chicago,"  and  its  order  was  in  terms 
that  the  railroad  companies  be — 

"required  to  cease  and  desist  on  or  before  the  1st  day  of  Feb- 
ruary, 1908,  from  exacting  for  the  delivery  of  live  stock  at  the 
Union  Stock  Yards,  in  Chicago,  111.,  with  respect  to  shipments 
of  live  stock  transported  by  them  from  points  outside  of  that 
State,  their  present  terminal  charge  of  $2  per  car. 

"It  is  further  ordered  that  said  defendants  be,  and  they  are 
hereby  notified  and  required  to  establish  and  put  in  force  on  or 
before  the  1st  day  of  February,  1908,  and  apply  thereafter 
during  a  period  of  not  less  than  two  years,  for  the  delivery  of 
live  stock  at  the  Union  Stock  Yards,  in  said  Chicago,  with 
respect  to  shipments  of  live  stock  transported  by  them  from 
points  outside  the  State  of  Illinois,  a  terminal  charge  which 
shall  not  exceed  $1  per  car,  if  any  terminal  charge  is  main- 
tained by  them." 

The  sixth  section  of  the  act  known  as  the  "Hepburn  Act," 
(an  act  to  amend  the  Interstate  Commerce  Act,  passed  on 
June  29,  1906,  c.  3591,  34  Stat.  584),  requires  carriers  to  file 
with  the  commission  and  print  and  keep  open  to  inspection 


INTERSTATE  COMMERCE  COMM.  v,  STICKNEY.    106 
215  U.  8.  Opinion  of  the  Ck>urt. 

schedules  showing,  among  other  things,  ''separately  all  ter- 
minal charges  .  .  .  and  any  rules  or  regulations  which  in 
any  wise  change,  afifect,  or  determine  any  part  or  the  aggregate 
of  such  aforesaid  rates."  By  §  15  the  commission  is  authorized 
and  required,  upon  a  complaint,  to  inquire  and  determine 
what  would  be  a  just  and  reasonable  rate  or  rates,  charge  or 
charges.  This,  of  course,  includes  all  charges,  and  the  carrier 
is  entitled  to  have  a  finding  that  any  particular  charge  is  un- 
reasonable and  unjust  before  it  is  required  to  change  such 
charge.  For  services  that  it  may  render  or  procure  to  be  ren- 
dered off  its  own  line,  or  outside  the  mere  matter  of  trans- 
portation over  its  line,  it  may  charge  and  receive  compensa- 
tion. Southern  Railway  Co.  v.  St.  Louis  Hay  Co.,  214  U.  S.  297. 
If  the  terminal  charge  be  in  and  of  itself  just  and  reasonable  it 
caimot  be  condemned  or  the  carrier  required  to  change  it  on 
the  ground  that  it,  taken  with  prior  charges  of  transportation 
over  the  lines  of  the  carrier  or  of  connecting  carriers,  makes  the 
total  charge  to  the  shipper  unreasonable.  That  which  must  be 
corrected  and  condemned  is  not  the  just  and  reasonable  ter- 
minal charge,  but  those  prior  charges  which  must  of  them- 
selves be  imreasonable  in  order  to  make  the  aggregate  of  the 
charge  from  the  point  of  shipment  to  that  of  delivery  un- 
reasonable and  unjust.  In  order  to  avail  itself  of  the  benefit 
of  this  rule  the  carrier  must  separately  state  its  terminal  or 
other  special  charge  complained  of,  for  if  many  matters  are 
lumped  in  a  single  charge  it  is  impossible  for  either  shipper  or 
commission  to  determine  how  much  of  the  lump  charge  is  for 
the  terminal  or  special  services.  The  carrier  is  under  no 
obligations  to  charge  for  terminal  services.  Business  interests 
may  justify  it  in  waiving  any  such  charge,  and  it  will  be  con- 
sidered to  have  waived  it  unless  it  makes  plain  to  both  shipper 
and  commission  that  it  is  insisting  upon  it.  In  the  case  in  186 
U.  S.  supra,  we  sustained  the  decree  of  the  lower  court,  re- 
straining the  reduction  of  the  terminal  charge  from  $2  to  $1  as 
to  all  stock  shipped  to  Chicago,  although  the  commission  had 
stated  that  there  had  been  a  reduction  of  the  through  rate 


106  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

from  certain  points  by  from  $10  to  $15,  in  reference  to  which 
reduction  and  its  effect  upon  the  order  of  the  commission  we 
said,  speaking  by  Mr.  Justice  White,  after  quoting  from  the 
report  of  the  commission  (pp.  338,  339) : 

"  In  other  words,  it  was  held  that  the  rate,  which  was  im- 
just  and  unreasonable  solely  because  of  the  $1  excess,  con- 
tinued to  be  unjust  and  unreasonable  after  this  rate  had  been 
reduced  by  from  ten  to  fifteen  dollars.  This  was  based,  not 
upon  a  finding  of  fact — as  of  course  it  could  not  have  been  so 
based — but  rested  alone  on  the  ruling  by  the  commission  that 
it  could  not  consider  the  reduction  in  the  through  rate,  but 
must  confine  its  attention  to  the  $2  terminal  rate,  since  that 
alone  was  the  subject-matter  of  the  complaint.  But,  as  we 
have  previously  shown,  the  commission,  in  considering  the 
terminal  rate,  had  expressly  found  that  it  was  less  than  the 
cost  of  service,  and  was  therefore  intrinsically  just  and  reason- 
able, and  could  only  be  treated  as  unjust  and  unreasonable  by 
considering  'the  circumstances  of  the  case;'  that  is,  the 
through  rate  and  the  fact  that  a  terminal  charge  was  included 
in  it,  which,  when  added  to  the  $2  charge,  caused  the  terminal 
charge  as  a  whole  to  be  unreasonable.  Having  therefore  de- 
cided that  the  $2  terminal  charge  could  only  be  held  to  be 
unjust  and  imreasonable  by  combining  it  with  the  charge  em- 
braced in  the  through  rate,  necessarily  the  through  rate  was 
entitled  to  be  taken  into  consideration  if  the  previous  con- 
clusions of  the  commission  were  weU  founded.  It  cannot  be 
in  reason  said  that  the  inherent  reasonableness  of  the  terminal 
rate,  separately  considered,  is  irrelevant  because  its  reason- 
ableness is  to  be  determined  by  considering  the  through  rate 
and  the  terminal  charge  contained  in  it,  and  yet  when  the 
reasonableness  of  the  rate  is  demonstrated,  by  considering  the 
through  rate  as  reduced,  it  be  then  held  that  the  through  rate 
should  not  be  considered.  In  other  words,  two  absolutely  con- 
flicting propositions  cannot  at  the  same  time  be  adopted.  As 
the  finding  was  that  both  the  terminal  charge  of  $2  and  the 
through  rate  as  reduced  when  separately  considered  were 


INTERSTATE  COMMERCE  COMM.  v,  STICKNEY.  107 
215  U.  S.  Opinion  of  the  Court. 

just  and  reasonable,  and  as  the  further  finding  was  that  as  a 
consequence  of  the  reduction  of  from  ten  to  fifteen  dollars  per 
car,  the  rates,  considered  together,  were  just  and  reasonable,  it 
follows  that  there  can  be  no  possible  view  of  the  case  by  which 
the  conclusion  that  the  rates  were  unjust  and  unreasonable  can 
be  sustained/' 

The  tariff  schedules  of  the  appeUees  make  clear  the  separate 
terminal  charge  for  delivery  from  their  own  lines  to  the  Union 
Stock  Yards.  We  quote  the  schedule  of  the  Chicago  and 
Northwestern  Railroad  Company : 

*'The  live  stock  station  and  stock  yards  of  this  company  in 
Chicago  are  located  at  Mayfair,  and  the  rates  named  herein 
apply  only  to  live  stock  intended  for  delivery  at,  or  received 
and  transported  from  the  stock  yards  of  the  company  at  May- 
fair,  in  Chicago. 

*'  Upon  all  live  stock  consigned  to  or  from  the  Union  Stock 
Yards  in  Chicago,  or  industries  located  on  the  Union  Stock 
Yards  Railway  or  the  Indiana  State  Line  Railway,  and  trans- 
ported and  delivered  to  or  received  and  transported  from  said 
Union  Stock  Yards  or  said  industries  located  on  said  Union 
Stock  Yards  Railway,  or  the  Indiana  State  Line  Railway, 
aforesaid,  a  charge  of  two  dollars  ($2.00)  per  car  wiU  be  made 
for  the  special  and  separate  service  of  transporting  such  cars  to 
said  Union  Stock  Yards,  or  to  said  industries  on  said  Union 
Stock  Yards  Railway,  or  the  Indiana  State  Line  Railway,  from 
this  company's  own  rails,  or  of  transporting  such  cars  from 
said  Union  Stock  Yards,  or  said  industries  on  said  Union  Stock 
Yards  Railway,  or  the  Indiana  State  line  Railway,  to  this 
company's  own  rails." 

The  others  are  equaUy  specific.  In  some  of  them,  as  in 
those  of  the  Atchison,  Topeka  and  Santa  Fe  Railway  Com- 
pany, it  is  provided : 

*'The  attention  of  the  shipper  must  be  and  is  called  to  the 
fact  that  the  transportation  charge  on  live  stock  delivered  at 
our  own  yards  at  Corwith  in  Chicago  will  be  two  dollars  ($2.00) 
per  car  less  than  when  delivered  at  the  Union  Stock  Yards 


108  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

at  Chicago,  or  at  industries  located  on  the  Union  Stock  Yards 
Railway  or  the  Indiana  State  line  Railway,  and  the  agent 
should  ascertain  definitely  at  which  point  the  shipper  desires 
delivery  to  be  made.  The  live  stock  contract  must  then  be 
filled  out  so  as  to  show  the  correct  destination  and  rate  as  pro- 
vided by  the  tariff  and  amendments." 

Further,  it  is  shown  by  the  affidavits  that  the  amoimt  of 
such  terminal  charge  is  not  entered  upon  the  general  freight 
charges  of  the  companies,  but  is  kept  as  a  separate  item.  The 
Union  Stock  Yards  Company  is  an  independent  corporation 
and  the  fact,  if  it  be  a  fact,  that  most  or  even  all  of  its  stock  is 
owned  by  the  several  railroad  companies  entering  into  Chicago 
does  not  make  its  lines  or  property  part  of  the  lines  or  property 
of  the  separate  railroad  companies. 

With  reference  to  the  reasonableness  of  the  terminal  charge, 
it  was  stipulated  on  the  hearing  before  the  Interstate  Com- 
merce Commission  that  all  the  testimony  taken  in  the  former 
proceedings  might  be  considered.  It  also  appears  that  ad- 
ditional testimony  was  there  offered.  None  of  this  testimony 
has  been  printed  in  the  record  presented  to  us.  We  have,  how- 
ever, our  former  decision  as  well  as  the  report  of  the  commis- 
sion on  the  recent  hearing,  and  also  the  affidavits  filed  on  this 
application,  and  can  consider  them.  It  appears  from  the 
former  case  that,  after  some  discussion,  when  testimony  was 
being  offered  on  the  question  of  reasonableness,  the  conmii&- 
sion  suggested  that  it  was  probably  unnecessary  to  offer 
further  evidence,  and  said  (186  U.  S.  327) : 

"'To  remove  all  doubt  upon  that  subject,  however,  if  it  is 
not  clearly  found,  we  now  find  that,  looking  entirely  to  the 
cost  of  service,  and  including  as  a  part  of  that  cost  the  track- 
age charge  paid  the  Union  Stock  Yards  and  Transit  Com- 
pany and  the  unloading  charge  paid  that  same  company,  the 
amount  of  this  terminal,  if,  under  the  circumstances  of  this 
case,  it  is  proper  to  impose  the  charge  is  reasonable.  If  any 
modification  of  the  present  findings  is  necessary,  they  are 
hereby  modified  to  that  extent."' 


I 


INTERSTATE  COMMERCE  COMM.  v.  STICKNEY.  109 
215  U.  S.  OpinioQ  of  the  Court. 

And  in  the  excerpt  put  into  the  margin  in  the  opinion  of  this 
court  is  a  statement  of  the  actual  and  estimated  expense  to  the 
different  raikoads  for  making  such  delivery,  which  makes  it 
quite  clear  that  the  charge  was  a  reasonable  one.  This  finding 
as  to  the  reasonableness  of  the  charge  was  repeated  again  by 
the  commission. 

In  its  report  in  the  present  case  it  said : 

"The  original  case  did  not  show  the  cost  of  making  delivery 
of  other  kinds  of  carload  freight  at  this  market,  but  the  present 
record  shows  that  the  average  cost  to  one  defendant,  the 
Atchison,  Topeka  and  Santa  Fe  Railway  Company,  of  deliver- 
ing all  kinds  of  carload  freight,  including  live  stock,  is  S5.40 
per  car,  while  the  cost  of  delivering  live  stock  is  not  far  from 
$2  per  car.  The  testimony  further  indicates  that  the  average 
cost  of  delivering  all  kinds  of  carload  freight  does  not  differ 
much  in  the  case  of  the  Santa  Fe  from  that  in  the  case  of  the 
other  defendants,  although  it  does  not  appear  that  several  of 
the  defendants  are  at  greater  expense  than  S2  per  car  in  mak- 
ing delivery  of  live  stock  at  the  stock  yards.  We  think  it 
fairly  appears  upon  this  record  that  the  total  cost  to  these 
defendants  of  delivering  live  stock  at  the  Union  Stock  Yards, 
including  the  trackage  charge,  is  not  much,  if  any,  above  one- 
half  the  average  cost  of  handling  all  carload  freight  in  the  city 
of  Chicago." 

Under  those  circumstances  it  seems  impossible  to  avoid  the 
conclusion  that,  considered  of  and  by  itself,  the  terminal 
charge  of  two  dollars  a  car  was  reasonable.  If  any  shipper  is 
wronged  by  the  aggregate  charge  from  the  place  of  shipment 
to  the  Union  Stock  Yards  it  would  seem  necessarily  to  follow 
that  the  wrong  was  done  in  the  prior  charges  for  transporta- 
tion, and,  as  we  have  already  stated,  should  be  corrected  by 
proper  proceedings  against  the  companies  guilty  of  that  wrong, 
otherwise  injustice  will  be  done.  If  this  charge,  reasonable  in 
itself,  be  reduced  the  Union  Stock  Yards  Company  will  suffer 
loss  while  the  real  wrongdoers  will  escape.  It  may  be  that  it 
is  more  convenient  for  the  commission  to  strike  at  the  terminal 


110  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  R 

charge,  but  the  convenience  of  commission  or  court  is  not  the 
measure  of  justice. 

We  are  unable  to  find  any  error  in  the  conclusions  of  the  trial 
judges,  and  their  order  is,  therefore. 

Affirmed. 


HANOVER  NATIONAL  BANK  OF  NEW  YORK  v.  SUD- 
DATH,  RECEIVER  OF  AMERICAN  NATIONAL  BANK 
OF  ABILENE. 

ERROR  TO  THE  CIRCUIT  COURT  OF  APPEALS  FOR  THE  SECOND 

ciRCurr. 

No.  12.     Argued  Apiil  20,  1909.~Decided  November  29,  1909. 

When  a  bank  refuses  to  do  the  particidar  thing  requested  with  securi- 
ties delivered  to  it  for  that  purpose  only,  it  is  its  duty  to  return  the 
securities  and  no  general  lien  in  its  favor  attaches  to  them. 

The  fact  that  a  bank  has  in  its  possession  securities  which  were  sent  to  it 
for  a  particular  purpose  and  which  it  is  its  duty  to  return  to  the 
sender,  does  not  justify  its  retaining  them  for  any  other  purpose 
under  a  banker's  agreement  giving  it  a  general  lien  on  all  securi- 
ties deposited  by  the  sender. 

A  banker's  agreement  giving  a  general  lien  on  securities  deposited  by 
its  correspondent  will  not  be  construed  so  as  to  give  it  a  broad  mean- 
ing beyond  its  evident  scop)e  and  in  conflict  with  the  precepts  of 
duty,  good  faith  and  confidence  necessary  for  commercial  transac- 
tions; nor  will  a  printed  form  prepared  by  the  banker  be  so  extended 
by  the  construction  of  any  ambiguous  language. 

In  this  case  it  was  held  that  the  retention  by  a  bank  of  securities  for  a 
purpose  different  from  that  for  which  they  were  sent  by  its  corre- 
spondent could  not  be  predicated  on  the  consent  of  the  latter,  and 
that  inaction  of  the  correspondent  could  not  be  construed  as  con- 
sent. 

149  Fed.  liep.  127,  affirmed. 

The  facts  are  stated  in  the  opinion. 


HANOVER  NATIONAL  BANK  v,  SUDDATH.       Ill 
215  U.  S.  Argument  for  Defendant  in  Error. 

Mr.  Percy  S.  Dudley  for  plaintiff  in  error : 

Plaintiff  in  error  had  the  right  to  retain  the  notes  under 
the  express  terms  of  the  collateral  agreement.  AiUen  v. 
Bank,  174  U.  S.  125,  145;  Hiscock  v.  Varick  Bank,  206  U.  S. 
28,  and  cases  cited.  As  to  scope  of  words  "or  otherwise''  see 
Farr  v.  Nichols,  132  N.  Y.  327.  As  bailee  of  the  notes  the 
Hanover  Bank  had  a  lien  on  them.  Benjamin  on  Sales,  §  2, 
Am.  note.  As  to  construction  of  the  agreement,  see  GiUet  v. 
Bank,  160  N.  Y.  549;  SaUler  v.  Hallock,  160  N.  Y.  291,  297; 
Church  V.  Hubbari,  2  Cranch,  233;  HiUchinsan  v.  ManhaUan 
Co,,  150  N.  Y.  250;  21  Am.  &  Eng.  Ency.  Law,  2d  ed.,  1016. 
Plaintiff  in  error  had  the  right  to  retain  the  notes  by  virtue  of 
its  bankers'  lien.  1  Daniel's  Neg.  Inst.,  5th  ed.,  342;  1  Morse 
on  Banks,  4th  ed.,  §  324;  Reynes  v.  Durrumt,  130  U.  S.  354, 
390;  Biefyinger  v.  Continental  Bank,  99  U.  S.  143;  Bank  of 
Montreal  v.  White,  154  U.  S.  660;  Petrie  v.  Myers,  54  How. 
Pr.  513,  distinguished,  and  see  Armstrong  v.  Chemical  Bank, 
41  Fed.  Rep.  234;  CorUinental  Bank  v.  Weem^,  60  Texas, 
489. 

The  receiver  of  the  Abilene  Bank  took  the  assets  subject 
to  the  claim  of  the  Hanover  Bank  and  obligation  existing 
when  he  took  possession.  Scott  v.  Armstrong,  146  U.  S.  499; 
Rankin  v.  City  Nat.  Bank,  208  U.  S.  541. 

The  Hanover  Bank  had  the  consent  of  the  Abilene  Bank  to 
retain  the  notes.  Mailing  the  letters  was  a  delivery  and  had 
the  Abilene  Bank  mailed  cash  it  would  have  been  subject  to 
lien  of  Hanover  Bank  although  not  delivered  until  after  the 
failure;  it  is  so  also  as  to  these  notes.  McDonald  v.  Chemical 
Nat,  Bank,  174  U.  S.  610;  Ruggles  v.  Am,  Cent.  Ins.  Co.,  114 
N.  Y.  415. 

Mr.  Edward  B.  Whitney,  with  whom  Mr.  Francis  F.  Old- 
ham was  on  the  brief,  for  defendant  in  error : 

The  Hanover  Bank  had  no  general  lien  on  the  notes  in- 
volved, Brandao  v.  Bamett,  12  CI.  &  Fin.  787;  Story  on 
Agency,  §  381;  1  Morse  on  Banks,  4th  ed.,  597;  Bank  of  Met, 


112  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

V.  N.  E.  Bank,  1  How.  234,  239;  Leese  v.  Martin,  L.  R.  17 
Eq.  224,  235;  Reynes  v.  Dumont,  130  U.  &.  354.  These  and 
other  cases  all  hold  that  where  securities  are  sent  for  a  specific 
purpose  the  recipient  cannot  hold  them  for  any  other  purpose 
but  must  return  them.  1  Jones  on  liens,  2d  ed.,  244;  Lucas 
V.  Darrien,  7  Taunt.  278;  Petrie  v.  Myers,  54  How.  Pr.  513; 
Bank  of  Montreal  v.  White,  154  U.  S.  660.  The  bank  becomes 
a  trustee  to  apply  the  securities  as  directed  by  the  sender. 
Libby  v.  Hopkins,  104  U.  S.  309. 

The  Hanover  Bank  had  no  lien  on  the  notes  under  the 
agreement  and  there  was  no  other  agreement  or  consent  un- 
der which  that  bank  could  hold  them.  There  was  no  proposal 
or  acceptance  as  to  the  collateral  loan  and  payment  of  over- 
draft. 9  Cyc.  293;  MeyreU  v.  Surtees,  25  L.  J.  Ch.  257,  262; 
Scott  V.  Armstrong,  146  U.  S.  511. 

Mr.  Justice  White  delivered  the  opinion  of  the  court. 

The  predecessor  of  the  present  receiver  of  the  American 
National  Bank  of  Abilene,  Texas,  sued,  in  April,  1905,  to  re- 
cover from  the  Hanover  National  Bank  of  New  York  four 
promissory  notes  or  their  value. 

We  shall  refer  to  the  corporations  as  the  Abilene  Bank  and 
the  Hanover  Bank. 

At  the  trial,  under  instruction,  there  was  verdict  for  the 
Hanover  Bank,  and  the  judgnient  thereon  was  reversed. 
Van  Zandt  \\  Hanover  Nat,  Bank.  149  Fed.  Rep.  127.  In 
conformity  to  the  opinion  of  the  Circuit  Court  of  Appeals,  on 
the  new  trial  a  \'erdict  was  directed  in  favor  of  the  receiver, 
and  to  n^verst^  the  affirmance  of  that  judgment  {Hanover  Nat. 
/i<iwJt  V,  Suiiiiath,  153  Fed.  Rep,  1021)  this  writ  of  error  is 
pnvnH»utiHl, 

The  factis  are  these:  Prior  to  November,  1903,  the  Abilene 
Bank  was  a  Ci>rroe*jxvndent  of  the  Hanover  Bank,  and  had  an 
aooount  with  the  latter.  The  oreilit  of  this  account  was  prin- 
oi|u^Uy  nmile  up  l\v  the  pnxwxte  arising  from  the  rediscount- 


HANOVER  NATIONAL  BANK  v,  SUDDATH.      113 
215  U.  S.  Opinion  of  the  Court. 

ing  by  the  Hanover  Bank  of  commercial  paper  for  account  of 
the  Abilene  Bank.  On  November  27,  1903,  the  Abilene  Bank 
signed  an  agreement  concerning  the  right  of  the  Hanover 
Bank,  imder  conditions  stated,  to  attribute  to  the  payment 
of  debts  due  it  by  the  Abilene  Bank  securities  in  its  hands 
belonging  to  the  Abilene  Bank.  In  January,  1905,  the  Han- 
over Bank  was  contingently  responsible  for  commercial  paper, 
aggregating  probably  sixteen  or  seventeen  thousand  dollars, 
which  it  had  rediscoimted  for  the  Abilene  Bank,  and  upon 
which  the  latter  bank  was  ultimately  liable. 

On  January  9,  1905,  the  Abilene  Bank  transmitted  by  mail 
to  the  Hanover  Bank  a  note  of  the  Hayden  Grocery  Company 
for  $2,000,  drawn  to  the  order  of  the  Abilene  Bank  and  by  it 
indorsed,  the  letter  stating  that  the  note  was  sent  for  discount 
and  credit.  On  the  next  day — ^the  tenth — the  Abilene  Bank 
also  transmitted  by  mail  a  note  drawn  by  R.  H.  Logan  and 
W.  R.  Logan  to  its  order,  and  by  it  indorsed  likewise,  with  a 
statement  that  it  was  sent  for  discount  and  credit.  On  the 
twelfth  of  the  same  month  the  Abilene  Bank  again  transmitted 
to  the  Hanover  Bank  for  discount  and  credit  two  other  notes, 
one  drawn  by  L.  W.  Hollis  for  $3,500,  and  indorsed,  as  were 
the  previous  notes  and  a  note  of  C.  B.  and  W.  F.  Scarborough, 
for  $1,500  likewise  so  indorsed,  the  letter  of  transmittal  yet 
again  stating  that  they  were  sent  for  discount  and  credit. 

The  Hayden  Grocery  Company  and  the  Logan  notes,  for- 
warded on  the  ninth  and  tenth  of  January,  reached  the  Han- 
over Bank  on  the  fourteenth;  and  on  that  day  it  telegraphed 
to  the  Abilene  Bank,  declining  to  discount  the  notes,  and  by 
a  second  telegram  said:  "Referring  to  previous  dispatch 
transfer  or  ship  currency,"  which,  according  to  the  counsel 
for  the  Hanover  Bank,  meant  to  call  upon  the  Abilene  Bank 
either  to  transfer  a  credit  from  some  other  bank  or  ship  cur- 
rency direct.  It  is  not  shown  that  any  reply,  either  by  tele- 
gram or  letter,  was  made  to  the  messages  thus  sent  on  the 
fourteenth.  The  notes  forwarded  on  the  twelfth  reached  the 
Hanover  Bank  on  the  sixteenth,  and  the  latter  at  once  tcle- 
VOL.  rcxv — 8 


114  OCTOBER  TERM,  1909. 

OpinioQ  of  the  Court.  215  U.  S. 

graphed,  "Not  satisfactory,"  and  confirmed  the  tel^ram  by 
a  letter,  saying:  "We  are  not  discounting  inclosures  for  you, 
but  hold  same  as  collateral  to  your  indebtedness  to  us."  The 
Abilene  Bank  did  not  reply  by  telegram  but  on  the  same  day 
wrote  to  the  Hanover  Bank  as  follows : 

"We  have  just  received  your  wire.  The  rediscounts  we 
sent  you  were  mostly  renewals  and  in  every  instance  'good 
as  gold.' 

"Since  the  drop  in  cotton,  collections  are  at  a  standstill, 
and  our  clients  expect  us  to  stay  with  them,  and  we  are 
obliged  to  ask  the  same  indulgence  from  our  correspondents. 

"Should  you  prefer,  we  will  send  our  B/P  with  collaterals 
attached. 

"  We  trust  you  will  accord  us  the  leniency  asked  for." 

On  the  morning  of  January  17,  1905,  there  stood  on  the 
books  of  the  Hanover  Bank  to  the  credit  of  the  Abilene  Bank 
the  sum  of  $616.15.  On  that  day  a  check  on  the  Hanover 
Bank,  dated  January  11,  1905,  drawn  by  the  Abilene  Bank 
for  the  sum  of  $3,825.45,  payable  to  the  New  York  Life  In- 
surance Company,  as  also  some  small  checks,  passed  through 
the  clearing  house.  Upon  attention  being  directed  to  the 
overdraft  which  thereby  resulted  a  telegram  was  sent  to  the 
Abilene  Bank,  referring  to  the  previous  letters  and  telegrams, 
and  asking  that  bank  what  it  had  done.  No  reply  having 
been  received  before  the  close  of  business  on  that  day,  the 
vice-president  of  the  Hanover  Bank,  after  examining  the 
written  agreement  to  which  we  have  previously  alluded,  al- 
lowed the  overdraft  to  stand,  and  to  cover  the  same  made 
an  entry  of  a  loan  of  $3,500  to  the  Abilene  Bank,  which  was 
placed  to  the  credit  of  that  bank,  and  after  absorbing  the 
overdraft,  left  to  its  credit  the  sum  of  $63.74.  On  the  same 
day  the  Hanover  Bank  wrote  to  the  Abilene  Bank,  saying: 
"As  your  accoimt  showed  overdrawn  to-day  over  $3,000, 
have  made  you  a  temporary  loan  of  $3,500  against  collateral 
in  our  hands."  On  the  next  day  (January  18)  the  Abilene 
Bank  closed  itvS  doors. 


HANOVER  NATIONAL  BANK  v.  SUDDATH.      115 
215  U.  S.  Opinion  of  the  Ck>urt. 

It  is  to  be  observed  that  of  the  letters,  the  one  by  the  Han- 
over Bank,  written  on  the  seventeenth  of  January,  and  the 
one  written  on  the  previous  day  by  the  Abilene  Bank,  did  not 
reach  their  destination  until  after  the  failure  of  the  Abilene 
Bank. 

Thereafter  Biehard  L.  Van  Zandt  was  appointed  receiver, 
and,  as  we  have  said,  commenced  this  action  to  recover  the 
possession  of  the  four  notes  which  had  been  transmitted  to 
the  Hanover  Bank  as  above  stated,  or  the  value  of  such  notes, 
and  in  the  course  of  the  action  the  proceedings  took  place  to 
which  we  have  at  the  outset  referred.  The  ground  relied  upon 
for  recovery  was  that  as  the  notes  had  been  sent  to  the  Han- 
over Bank  for  discount  for  the  account  of  the  Abilene  Bank, 
upon  the  Hanover  Bank  refusing  to  discount  them  that  bank 
had  no  claim  whatever  upon  the  notes,  and  had  no  right  to 
apply  them  as  collateral  to  the  payment  of  the  voluntary 
overdraft  which  had  been  allowed  on  the  seventeenth  of  Jan- 
uary, and  thus  obt&in  a  preference  to  the  extent  of  the  ap- 
propriation over  the  general  creditors  of  the  Abilene  Bank. 
It  suffices  to  say  that  the  defense  of  the  Hanover  Bank  con- 
troverted this  contention,  and  asserted  that  the  appropriation 
of  the  notes  was  justified  under  its  general  bankers'  lien  or 
under  the  terms  of  the  special  agreement  of  November  27, 
1903.  During  the  pendency  of  the  action  the  Hanover  Bank 
collected  three  of  the  notes,  deducted  from  their  proceeds  the 
sum  of  $3,725.86  then  due,  and  paid  to  the  receiver  the  bal- 
ance and  also  delivered  to  him  the  uncollected  note,  being  the 
note  of  R.  H.  Logan  and  W.  R.  Logan,  which  had  been  trans- 
mitted to  the  Hanover  Bank  on  January  10  and  was  by  it 
received  on  the  fourteenth. 

It  is  contended  that  the  appellate  court  erred  in  affirming 
the  ruling  of  the  CSrcuit  Court,  directing  a  verdict  for  the  re- 
ceiver. The  groimds  for  this  contention  are  that  the  evidence 
showed  that  the  Hanover  Bank  had  the  right  to  retain  the 
four  notes  or  the  balance  of  their  proceeds,  by  virtue  of  its 
general  bankers'  lien;  and,  if  not,  as  a  result  of  the  express 


116  OCTOBER  TERM,  1909. 

Opinion  of  the  Ck>urt.  215  U.  8. 

provisions  of  the  agreement  of  November  27,  1903;  and,  in 
any  event,  by  the  authority  or  consent  of  the  Abilene  Bank. 
Without  stopping  to  consider  whether  the  third  contention  is 
not  really  involved  in  the  first  two,  we  pass  to  their  consid- 
eration in  the  order  mentioned. 

1.  Was  there  a  right  of  retention  in  the  New  York  bank  by 
\yirtue  of  its  general  bankers^  lienf 

The  rulings  of  this  court  foreclose  this  question,  since  they 
conclusively  establish  that  a  general  lien  in  favor  of  a  bank 
cannot  attach  to  securities  which  are  delivered  to  it  in  order 
that  it  may  do  a  particular  thing  with  them,  and  that  when  it 
refuses  to  do  that  thing  the  duty  to  return  exists.  The  gen- 
eral subject  was  elaborately  considered  and  the  authorities 
were  fully  reviewed  in  Reynes  v.  Dumont,  130  U.  S.  354.  In 
that  case  securities  had  been  sent  to  bankers  for  a  specific 
purpose.  That  purpose  having  been  accomplished,  the  se- 
curities were  permitted  to  remain  in  the  custody  of  the  bankers 
as  depositaries,  because  they  were  in  a  good  market  and 
a  place  convenient  for  procuring  loans,  and  because  the  ex- 
pressage  upon  their  return  would  have  been  great.  The  right 
to  a  general  bankers'  lien  upon  the  securities  was  denied. 
Such  a  lien,  it  was  said  (on  p.  390),  would  arise  "in  favor  of  a 
bank  or  banker  out  of  contract  expressed,  or  implied  from  the 
usage  of  the  business,  in  the  absence  of  anjrthing  to  show  a 
contrary  intention."  Ordinarily,  it  was  declared  (p.  391) 
the  lien  would  attach  in  favor  of  a  bank  upon  securities  and 
moneys  of  the  customer  deposited  in  the  usual  course  of  busi- 
ness, etc.  It  was,  however,  expressly  declared  not  to  "arise 
upon  securities  accidentally  in  the  possession  of  the  bank,  or 
not  in  its  possession  in  the  course  of  its  business  as  such,  nor 
where  the  securities  are  in  its  hands  under  circumstances,  or 
where  there  is  a  particular  mode  of  dealing,  inconsistent  with 
such  general  lien."  Biebinger  v.  Continental  Bank,  99  U.  S. 
143,  was  one  of  the  authorities  cited  in  the  opinion.  In  that 
case  it  appeared  a  deed  had  been  deposited  with  the  bank  as 
collateral  security  for  the  customer's  current  indebtedness 


HANOVER  NATIONAL  BANK  v.  SUDDATH.      117 
215  U.  S.  OpinioQ  of  the  Court. 

and  discounts.  After  pajonent  of  this  indebtedness  and  a 
temporary  suspension  of  dealings,  the  customer  incurred  new 
indebtedness  to  the  bank,  but  as  it  did  not  appear  that  the 
money  was  loaned  or  debt  created  on  the  faith  of  the  deposit 
of  the  deed,  the  bank's  claim  of  a  lien  thereon  was  denied. 
Bank  of  Montreal  v.  White,  154  U.  S.  660,  is  also  a  pertinent 
decision.  Without  elaborating  the  issues  which  were  there 
involved,  it  suffices  to  say  that  in  an  action  to  recover  upon 
a  promissory  note,  in  order  to  escape  the  contention  that  it 
was  not  an  innocent  holder  the  bank  contended  that  before 
the  note  was  sent  to  it  for  discount  the  sender  was  imder  a 
promise  to  furnish  security  for  advances  to  be  made,  and 
therefore  the  rights  of  the  bank  as  an  innocent  holder  were  to 
be  determined  by  the  state  of  its  knowledge  at  the  time  the 
note  was  received,  although  the  discount  was  declined,  and 
not  by  the  state  of  knowledge  existing  when  at  a  subsequent 
date  the  note  was  actually  discounted.  In  disposing  of  a 
contention  that  the  trial  court  had  committed  error  in  not 
giving  an  instruction  which  the  bank  asked  in  accord  with  its 
contention  as  just  stated,  the  court  said : 

''There  can  be  no  pretense  in  this  case  that  the  note  in  suit 
was  ever  actually  delivered  to  the  bank  as  collateral  security 
for  past  or  future  indebtedness.  In  the  letter  transmitting 
it,  the  bank  manager  was  asked  to  discount  it  and  place  the 
proceeds  to  the  credit  of  the  manufacturing  company.  In 
that  event,  the  'overdraft  kindly  allowed  on  Friday,'  was 
to  be  charged  against  the  credit,  but  it  is  nowhere,  even  in 
the  remotest  degree,  intimated  that  if  the  discount  was  de- 
clined the  note  might  be  kept  as  collateral.  The  charge  asked 
and  refused  wj^,  therefore,  wholly  immaterial,  and  the  judg- 
ment cannot  be  reversed  because  it  was  not  given." 

2.  Wa^  the  Hanover  Bank  entitled  to  retain  the  notes  under 
the  terms  of  the  agreement  of  November  27,  1903? 

The  material  portions  of  the  agreement  are  as  follows : 

"For  and  in  consideration  of  one  dollar  [&c,],  the  under- 
signed agree  with  said  bank  that  all  bills  of  exchange,  notes. 


L 


118  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

checks,  and  the  proceeds  thereof,  and  all  other  securities, 
money  and  property  of  every  kind  owned  by  the  undersigned, 
or  either  or  any  of  them,  or  in  which  they,'  or  any  or  either  of 
them,  have  any  interest  deposited  with  said  bank,  or  which 
may  hereafter  be  deposited  with  said  bank,  or  which  may  be 
in  any  wise  in  said  bank,  or  imder  its  control,  as  collateral 
security  for  loans  or  advances  already  made  or  hereafter  to 
be  made  to  or  for  account  of  the  undersigned,  by  said  bank, 
or  otherwise,  may  be  held,  collected  and  retained  by  said 
bank  imtil  all  liabilities,  present  or  future,  of  the  imdersigned, 
or  any  or  either  of  them,  due  or  not  due  of  every  kind  to  said 
bank,  now  or  hereafter  contracted,  shall  be  paid  and  fully 
satisfied." 

For  the  Hanover  Bank  it  is  contended  that  although  the 
notes  were  not  in  its  possession  as  collateral  security  for  any 
debt  due  it,  nevertheless,  as  it  had  the  physical  possession  of 
the  notes  and  they  were  not  unlawfully  in  its  hands,  it  had 
under  the  agreement  the  power  to  make  the  advance  to  cover 
the  overdraft  and  to  attribute,  without  the  consent  of  the 
Abilene  Bank,  the  notes  in  question  as  collateral  security  for 
the  loan  which  was  made.  The  construction  upon  which  this 
proposition  is  rested  gives  to  the  agreement  the  most  lati- 
tudinarian  meaning,  and  besides,  in  effect,  depends  upon  con- 
sidering one  or  more  clauses  separately  from  their  context, 
thereby  affixing  to  them  a  significance  to  which  they  would 
not  be  entitled  if  considered  in  connection  with  the  text  in 
which  they  are  found.  To  illustrate:  It  is  said  the  words 
which  give  the  power  to  the  Hanover  Bank  to  appropriate 
any  securities  "deposited  with  said  bank,  or  which  may  here- 
after be  deposited  with  said  bank,  or  which  may  be  in  any 
wise  in  said  bank,  or  under  its  control,"  are  broad  enough  to 
embrace  securities  in  the  hands  of  the  Hanover  Bank,  without 
considering  how  they  came  into  the  possession  of  that  bank 
or  without  taking  into  account  whether  that  bank  had  any 
claim  whatever  aside  from  the  agreement  in  question,  and 
without  considering  whether  it  was  under  the  plain  duty  to 


HANOVER  NATIONAL  BANK  v.  SUDDATH.      119 
215  U.  S.  Opinion  of  the  Court. 

return  the  securities  upon  demand;  and  had  no  right  to  re- 
quire the  performance  of  any  act  or  duty  by  the  Abilene  Bank 
in  respect  thereto.  But  this  broad  interpretation  is,  we  think, 
unreasonable,  since  it  cannot  be  assumed,  if  there  be  room  for 
implication  to  the  contrary,  that  the  agreement  was  intended 
to  confer  the  right  upon  the  Hanover  Bank  to  appropriate 
securities  merely  because  such  securities  had  come  into  its 
physical  control  and  with  the  obligation  to  return  on  demand. 
We  say  this,  because  it  is  manifest  that  to  attribute  the  broad 
meaning  claimed  would  be  in  conflict  with  the  precepts  of 
duty  and  good  faith,  and  would  be  destructive  of  that  con- 
fidence and  fair  dealing  so  essentially  necessary  in  commercial 
transactions.  In  the  light  of  these  considerations  we  think 
the  language  relied  upon  should  not  receive  the  all-embracing 
meaning  sought  to  be  attributed  to  it,  but  should  be  limited 
so  as  to  cause  the  same  to  embrace  only  property  deposited 
with  the  Hanover  Bank,  *'  or  which  may  hereafter  be  deposited 
with  said  bank,  or  which  may  be  in  any  wise  in  said  bank,  or 
under  its  control,"  under  circumstances  and  conditions  which 
gave  to  that  bank  by  operation  of  law  or  otherwise  some 
right  to  retain  such  property  for  a  particular  purpose.  And 
irrespective  of  the  meaning  which  we  attribute  to  the  lan- 
guage relied  upon,  when  independently  considered,  we  are 
of  opinion  that  the  want  of  merit  in  the  construction  given 
to  the  agreement  by  the  Hanover  Bank  is  clearly  demon- 
strated when  the  context  is  brought  into  view.  That  is  to 
say,  we  consider  that  the  provision  of  the  agreement  to  which 
we  have  just  referred  is  qualified  by  the  language  which  fol- 
lows it,  viz.,  "as  collateral  security  for  loans  or  advances 
already  made  or  hereafter  to  be  made  to  or  for  account  of  the 
undersigned,  by  said  bank,  or  otherwise."  In  other  words, 
the  provision  just  quoted,  we  think,  must  be  considered  as 
Umitative  in  its  character  and  as  controlling,  therefore,  the 
previous  stipulations,  thus  confining  the  right  to  apply  se- 
curities in  the  possession  of  the  Hanover  Bank  to  such  as 
had  come  into  its  possession  or  control  for  the  purposes  de- 


120  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

scribed.  The  contention  that  the  words  "or  otherwise"  de- 
prive the  provision  in  question  of  its  limitative  effect  is,  we 
think,  clearly  without  merit,  since  that  view  cannot  be  up- 
held without  causing  the  words  in  question  to  dominate  and 
destroy  the  meaning  of  the  agreement  as  derived  from  a  con- 
sideration of  all  its  provisions.  Particularly  is  this  the  case, 
as  those  words  are  susceptible  of  a  meaning  in  harmony  with 
the  context;  that  is  to  say,  may  be  held  to  give  the  right  to 
retain  securities  under  the  circumstances  stated,  even  al- 
though the  loan  may  not  have  been  made  directly  to  the  Abi- 
lene Bank,  as,  for  instance,  where  the  securities  belonging 
to  the  Abilene  Bank  came  into  the  possession  of  the  Hanover 
Bank  as  the  result  of  a  rediscounting  of  paper  of  the  Abilene 
Bank.  Conclusive  as  we  think  are  the  reasons  just  stated, 
they  are  additionally  fortified  by  the  considerations  which 
the  lower  court  so  cogently  pointed  out  in  the  opinion  by  it 
announced,  that  is,  that  the  contract  was  one  prepared  by 
the  Hanover  Bank  and  embodied  in  a  printed  form  in  general 
use  by  that  bank,  and  therefore  should  have  expressed  its 
purpose  beyond  doubt  and  not  ambiguously  if  the  language 
in  question  was  intended  to  convey  the  far-reaching  meaning 
now  sought  to  be  attributed  to  it. 

3.  Was  there  otherwise  a  right  of  retention  by  the  authority  or 
consent  of  the  Abilene  Bank? 

By  its  answer,  the  Hanover  Bank  based  its  claim  of  right 
to  retain  the  notes  in  question  solely  upon  its  general  bank- 
ers' lien  and  the  written  collateral  agreement.  The  letters 
to  the  Abilene  Bank,  coupled  with  the  statement  of  its  vice- 
president,  make  plain  the  fact  that  the  sole  reliance  of  the 
Hanover  Bank  in  asserting  a  claim  upon  the  notes  was,  in  re- 
ality, the  written  agreement.  Thus,  by  its  communication  of 
January  12,  1905,  confirming  the  telegram  advising  that  the 
Logan  and  Hayden  notes  would  not  be  discounted,  the  Han- 
over informed  the  Abilene  that  it  held  the  notes  as  collateral 
for  the  indebtedness  of  the  Abilene.  Again,  on  the  seventeenth 
of  the  same  month,  following  the  allowance  of  the  overdraft. 


HANOVER  NATIONAL  BANK  v.  SUDDATH.      121 
215  U.  S.  Opinion  of  the  Court. 

the  New  York  bank  wrote:  "As  your  account  showed  over- 
drawn to-day  over  $3,000  we  have  made  you  a  temporary 
loan  of  $3,500  against  collateral  m  our  hands."  And  the 
belief  of  the  vice-president,  that  the  Hanover  Bank  was  en- 
titled to  hold  the  four  notes  as  collateral  which  led  to  the 
allowance  of  the  overdraft,  is  clearly  shown  by  the  record  to 
have  been  induced  by  the  terms  of  the  collateral  agreement, 
which  he  at  the  time  inspected.  It  may  well  be  that  the  check 
of  January  11,  1905,  for  $3,825.45  was  issued  in  the  expecta- 
tion that  it  would  be  paid  from  the  proceeds  of  the  Logan 
note  of  $2,000  and  the  Hayden  note  of  $3,000,  forwarded  for 
discoimt  on  January  9  and  10.  But  these  and  the  subsequent 
notes  were  not  sent  to  be  held  as  collateral  security,  but  to 
be  discounted.  The  Abilene  Bank  had  been  notified  by  tele- 
gram not  only  that  the  Logan  and  Hayden  notes  would  not  be 
discounted,  but  that  it  should  either  transfer  credits  from 
other  banks  or  ship  currency.  The  information  plainly  con- 
veyed by  this  notificatioii  was  that  checks  drawn  upon  the 
faith  of  the  discount  of  the  notes  referred  to  must  be  protected 
with  funds  to  be  furnished.  In  reason,  the  Hanover  Bank 
was  not  entitled  to  act  upon  the  assumption  that  the  inaction 
of  the  Abilene  Bank  was  equivalent  to  a  request  to  pay  the 
drafts  as  presented  and  to  hold  as  collateral  the  notes  which 
had  been  sent  for  discount.  The  Hanover  Bank  should,  on  the 
contrary,  in  view  of  the  action  of  the  Abilene  Bank,  have 
assumed  the  possibility  that  funds  could  not  be  supplied,  and 
that  the  Abilene  Bank  might  therefore  be  unable  to  meet  its 
paper  and  be  compelled  to  cease  business.  It  is  apparent  that 
the  Hanover  Bank  in  allowing  the  overdraft  did  not  act  upon 
the  assmnption  that  the  possession  merely  of  the  notes  justi- 
fied its  reliance  upon  them  as  a  security  for  the  advance.  We 
say  this  because  the  record  leaves  no  doubt  that  the  device 
of  a  temporary  loan  in  order  to  secure  the  payment  of  the 
overdraft  was  resorted  to  upon  the  faith  of  rights  supposed 
to  inhere  in  the  written  agreement.  There  is  no  basis,  there- 
fore, for  the  contention  that  from  the  circumstances  of  the 


122  OCTOBER  TERM,  1909. 

Argument  for  Appeflant.  215  U.  8. 

overdnft  and  the  poflBeasicm  ci  the  notes  a  ri^st  of  reten- 
tion existed  created  by  authcHity  or  c<Hi8ent  of  the  Aldene 

Bank. 

Affirmed, 


hano\t:r  national  bank  of  new  york,  appel- 
lant,  r.  suddath,  as  recei\^r  of  american 
national  bank  of  abilene  (no.  2). 

APPEAL  FROM  THE  CIRCUIT  COmT  OF  APPEALS  FOR  THE  SECOND 

CIRCUIT. 

No.  13.    Argued  April  20,  1909.— Decided  Novonber  29,  1909. 

Where  a  bank,  after  refusiiig  to  discount  ^psper  sent  to  it  by  the  insol- 
vent for  that  purpoflBy  has  retained  the  paper,  it  cannot,  as  against 
genera]  creditors,  set  off  against  that  paper,  or  its  proceeds,  the  bank- 
rupt's overdraft  althou|^  made  after  such  refusal  and  pending  the 
retention  of  the  paper. 

153  Fed.  Rep.  1022,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Percy  S.  Dudley  for  appellant : 

The  Hanover  Bank  was  entitled  in  equity  to  set  off  the  ad- 
vance made  agidnst  the  notes  which  it  held.  Scott  v.  Armr 
strong,  146  U.  S.  499;  Carr  v.  Hamilton,  129  U.  S.  252;  Scam- 
mm  V.  Kimball,  92  U.  S.  362;  Bispham's  Equity,  7th  ed., 
1905,  §  327;  2  Bolles'  Modem  Law  of  Banking,  742;  Rolling 
MUl  v.  Ore  &  Sted  Co.,  152  U.  S.  596,  615;  Schtder  v.  Israel, 
120  U.  S.  506;  Armstrong  v.  Chemical  Bank,  41  Fed.  Rep.  234; 
Bank  v.  Massey,  192  U.  S.  138.  In  New  York  the  set-off 
would  have  been  allowed  under  the  Code.  Fera  v.  Wickham, 
135  N.  Y.  223;  DeCamp  v.  Thompson,  159  N.  Y.  444;  Emjrire 
Feed  Co.  v.  Chatham  Bank,  30  App.  Div.  476;  Thompson  v. 
Kessd,  30  N.  Y.  383;  G.  &  H.  Co.  v.  ffoH,  61  N.  Y.  226,  236; 
Brown  v.  Buckingham,  21  How.  Pr.  190. 


HANOVER  NATIONAL  BANK  v.  SUDDATH  (NO.  2).   123 
215  U.  S.  Opinion  of  the  Court. 

Mr.  Ed/ward  B.  Whitney,  with  whom  Mr.  Francis  F,  Old- 
ham was  on  the  brief,  for  appeUee: 

There  is  no  question  of  set-oflF,  legal  or  equitable,  in  the  case, 
nor  is  there  any  equity  in  the  bUl.  The  receiver's  case  was 
really  one  in  replevin.  N.  Y.  Code  of  Civ.  Pro.,  §§  1718, 1726, 
1730,  and  see  also  §  601;  2  Abbot's  Form  of  Pleading,  869; 
Moffatt  V.  Van  Daren,  4  Bosw.  609;  1  Nichols  N.  Y.  Prac.  972, 
and  cases  cited;  Dinan  v.  Coneys,  143  N.  Y.  544. 

Mr.  Justice  White  delivered  the  opinion  of  the  court. 

This  is  an  outgrowth  of  a  litigation  between  the  same  par- 
ties, which  we  have  just  decided  in  case  No.  12,  and  we  shall 
therefore  refer  to  the  banks  as  we  did  in  No.  12,  the  one  as 
the  Abilene  Bank  and  the  other  as  the  Hanover  Bank.  On 
October  11,  1906,  in  reversing  the  judgment  entered  in  that 
a<^ion  on  the  first  trial  in  favor  of  the  Hanover  Bank,  the 
Circuit  Court  of  Appeals  observed  (149  Fed.  Rep.  127, 130) : 

"The  contention  for  the  defendant  in  error  that  it  was  en- 
titled to  set  off  or  counterclaim  the  indebtedness  owing  to  it 
by  the  Abilene  Bank  when  the  latter  became  insolvent,  is 
wholly  imtenable.  Such  a  defense  is  not  available  in  an  ac- 
tion at  law  for  conversion,  and,  if  the  defendant  had  any  right 
of  equitable  set-off,  this  should  have  been  asserted  by  a  bill 
in  equity." 

On  November  20,  1906,  as  we  have  seen,  at  the  second  trial 
of  the  action  at  law  the  court  directed  the  jury  to  find  a  ver- 
dict in  favor  of  the  Abilene  Bank.  A  few  days  afterwards  the 
bill  in  this  cause  was  filed  on  behalf  of  the  Hanover  Bank,  the 
receiver  of  the  Abilene  Bank  being  the  defendant,  the  suit^ 
it  is  intimated,  having  been  commenced  because  of  the  state- 
ment made  by  the  Circuit  Court  of  Appeals  in  the  passage 
from  its  opinion  above  quoted.  The  course  of  deahng  between 
the  two  banks,  the  execution  of  the  written  agreement,  the 
forwarding  of  the  four  notes  for  discount,  the  refusal  to  dis- 
count, the  overdrawing  by  the  Abilene  Bank  of  its  account 


124  OCTOBER  TERM,  1909. 

Opinion  d  the  Court.  215  U.  8. 

with  the  Hanover  Bank,  the  allowance  of  the  overdraft  and 
the  temporary  loan  of  $3,500;  the  collection  of  three  of  the 
notes  and  retention  of  a  sufficient  sum  to  cancel  the  indebted- 
ness created  by  the  overdraft  and  the  surrender  of  the  balance 
to  the  receiver,  together  with  the  uncollected  note,  were  al- 
leged in  the  bill  substantially  as  we  have  stated  them  in  the 
opinion  in  No.  12.  The  coiiimencement  and  prosecution  of 
the  action  at  law  was  next  averred  and  the  various  steps  in 
that  litigation  were  detailed,  culminating  in  an  averment  of 
the  rendering  upon  the  second  trial  of  the  action  at  law  of  a 
verdict  in  favor  of  the  Abilene  Bank  for  $3,725.86.  It  was 
charged  that  the  receiver  was  threatening  to  enter  judgment 
upon  the  verdict.  Averring  a  right  in  equity  to  offset  the 
indebtedness  due  to  it  by  the  Abilene  Bank  on  January  18, 
1905,  against  the  demand  of  that  bank  or  its  receiver  for  the 
four  notes  or  their  proceeds,  the  Hanover  Bank  prayed  that 
its  set-off  might  be  allowed  against  the  receiver,  and  that  he 
be  enjoined  from  further  prosecuting  the  action  at  law.  A 
demurrer  to  the  bill  was  sustained  and  a  dismissal  was  en- 
tered. The  decree  was  affirmed  by  the  Circuit  Court  of  Ap- 
peals (153  Fed.  Rep.  1022),  and  the  cause  was  then  brought 
here. 

The  decision  just  announced  in  case  No.  12  establishes  the 
want  of  equity  in  the  bill.  The  mere  possession  of  the  notes 
by  the  Hanover  Bank  after  its  refusal  to  discount  them  did 
not  justify  that  bank  in  relying  upon  the  notes  as  collateral 
security  for  the  indebtedness  which  arose  from  the  voluntary 
payment  of  the  draft  drawn  by  the  Abilene  Bank  upon  the 
Hanover  Bank,  when  there  were  no  funds  in  the  latter  bank 
to  meet  the  draft.  The  notes  forwarded  January  9  and  10 
were  sent  to  be  discounted,  and  the  draft  drawn  on  January  11, 
which  created  the  overdraft,  was  presumably  drawn  upon 
the  faith  that  those  notes  would  be  discounted,  and  that  the 
draft  would  be  paid  out  of  the  proceeds.  As  matter  of  fact, 
however,  the  Hanover  Bank  recouped  itself  out  of  the  proceeds 
of  but  one  of  the  notes,  together  with  the  proceeds  of  notes 


KENNEY  V,  CRAVEN.  125 

215  U.  8.  Syllabus. 

subsequently  forwarded  to  it.  In  view  of  the  fact  that  the 
Hanover  Bank  not  only  notified  the  Abilene  Bank  that  the 
notes  would  not  be  discounted,  but  also  by  telegram  in  effect 
demanded  that  the  Abilene  Bank  should  forward  funds  to 
meet  its  drafts,  the  assumption  cannot  be  rightfully  indulged 
that  the  Hanover  Bank  allowed  the  overdraft  in  the  belief 
that  the  silence  of  the  Abilene  Bank  signified  that  it  expected 
the  draft  to  be  paid,  and  that  to  enable  the  payment  the 
Hanover  Bank  might  use  the  notes  sent  for  discount  as  it  saw 
fit.  It  is  not  contended  that  there  was  an  express  agreement 
between  the  parties  that  the  draft  which  created  the  overdraft 
should  be  paid,  and  that  the  funds  should  be  realized  in  the 
mode  pursued  by  the  Hanover  Bank.  Considering  the  trans- 
action either  from  the  standpoint  of  the  forwarding  of  the 
notes  for  discount  and  the  making  of  the  draft,  or  from  the 
standpoint  of  the  sending  of  the  notes  for  discount,  and  the 
failure  of  the  Abilene  Bank  to  forward  funds  or  to  promptly 
make  known  to  the  Hanover  Bank  its  wishes  in  the  matter, 
we  are  of  the  opinion  that  the  circumstances  of  the  transac- 
tion were  not  such  as  to  raise  the  presumption  of  agreement 
for  a  set-off  available  as  against  the  general  creditors.   Scott  v. 

Armstrong,  146  U.  S.  499. 

Affirmed, 


•*0*- 


KENNEY  V,  CRAVEN.* 

ERROR  TO  THE  SUPERIOR  COURT  OF  THE  STATE  OF 

MASSACHUSETTS. 

No.  31.    Argued  November  12, 1909.~Decided  November  29, 1909. 

The  determination  by  a  state  court  that  a  purchaser  pendente  lite  from 
the  trustee  of  a  bankrupt  is  bound  by  the  decree  against  the  trustee 
in  the  action  of  which  he  has  notice  gives  effect  to  such  decree  under 

*  Docket  title  originally  Corbett  v.  Craven.  Death  of  plaintiff  in  error 
suggested,  and  Kenney  and  McVey,  special  administrators,  substituted 
November  11,  1909. 


126  (XrrOBER  TERM,  1909. 

Statement  of  the  Gaae.  215  U.  8. 

the  principles  of  general  law;  and  if,  as  in  this  case,  it  does  not  in- 
volve passing  on  the  nature  and  character  of  the  rights  of  the  parties 
arising  from  the  transaction  of  purchase  and  sale,  no  Federal  question 
is  involved. 
Writ  of  error  to  review  196  Massachusetts,  319,  dismissed. 

James  Connor,  a  manufacturer  of  woolen  cloth,  operating 
two  mills  located  in  Holyoke,  Massachusetts,  sold  to  Michael 
Craven  machinery  contained  in  the  mills  and  evidenced  the 
same  by  three  bills  of  sale  executed  respectively  on  October  12, 
1883,  April  6,  1885,  and  March  10, 1891.  On  June  18, 1901, 
Connor  was  adjudicated  a  bankrupt,  and  in  August  following 
Nathan  B.  Avery  was  appointed  trustee.  In  the  same  month 
Avery,  as  trustee,  commenced  a  suit  in  equity  in  a  state  court  of 
Massachusetts,  and  therein  assailed  the  validity  of  the  bills  of 
sale  to  Craven,  above  referred  to,  and  prayed  that  they  might 
be  set  aside  and  the  property  decreed  to  belong  to  the  estate  of 
the  bankrupt.  While  that  suit  was  pending  and  on  Septem- 
ber 18,  1901,  Avery,  trustee,  sold  to  William  J.  Corbett,  as 
part  of  the  bankrupt  estate,  certain  of  the  machinery  situated 
in  the  mills  already  referred  to.  In  1905  Corbett  brought  this 
action  against  Craven  to  recover  from  him  the  value  of  the 
machinery  so  as  aforesaid  transferred  to  him  by  Avery,  trus- 
tee, alleging  that  Craven  had  taken  possession  of  and  con- 
verted the  property  sued  for  to  his  own  use.  Dxuing  the 
pendency  of  the  action  the  equity  cause  was  decided,  and,  after 
the  entry  of  the  decree  therein,  an  amended  answer  was  filed 
in  this  action.  Therein,  in  addition  to  a  general  denial,  the 
decree  in  the  equity  suit  in  favor  of  Craven  was  specially 
pleaded  in  bar,  and  it  was  averred  that  the  title  and  right  of 
possession  of  the  property  in  controversy  in  this  action  was  in 
issue  in  said  equity  cause  and  had  been  adjudicated  by  the 
decree  to  be  in  Craven.  An  auditor  was  appointed  "to  hear 
the  parties,  to  examine  their  vouchers  and  evidence,  to  state 
the  accounts,  and  make  report  thereof  to  the  court."  After 
the  taking  of  evidence  had  been  concluded  the  auditor  filed  a 
lengthy  report,  in  which  were  embodied  numerous  findings  of 


KENNEY  V,  CRAVEN.  127 

215  U.  8.  Statement  of  the  Case. 

fact.  On  the  ultimate  issues  the  auditor  found  for  the  plain- 
tiff. As  regards  the  decree  in  the  equity  cause  pleaded  in  bar, 
it  was  found  that  the  title  to  the  property  alleged  in  this  action 
to  have  been  converted  by  the  defendant  Craven  had  not  been 
the  subject  of  litigation  in  the  equity  cause,  and  that  the  de- 
cree in  that  cause  was  not  a  bar  to  a  recovery  by  the  plaintiff. 
The  case  was  then  by  the  court  committed  to  a  jury,  who 
found  for  the  plaintiff,  and  assessed  his  damages  at  $4,696.01. 
The  defendant,  on  exceptions,  carried  the  cause  to  the  Su- 
preme Judicial  Court  of  Massachusetts.  There  the  exceptions 
were  sustained,  upon  the  sole  ground  that  the  decree  in  the 
suit  in  equity  was  a  bar  to  the  claim  of  plaintiff.  Corbett  v. 
Craven,  193  Massachusetts,  30.  Subsequently  in  the  trial 
court  the  plaintiff  was  allowed  to  amend  his  declaration  by 
adding  thereto  the  following  paragraph : 

''And  the  plaintiff  says  that  said  goods  and  chattels  were 
the  property  of  one  James  Connor,  who  was  adjudicated  a 
bankrupt  by  the  District  Court  of  the  United  States  for  the 
District  of  Massachusetts,  June  18,  1901;  that  on  August  3, 
1901,  Nathan  P.  Avery,  of  Holyoke,  was  duly  appointed  trus- 
tee in  bankruptcy  of  the  estate  of  said  Connor;  that  on  Au- 
gust 6, 1901,  the  said  Avery  duly  filed  bond  and  duly  qualified 
as  such  trustee;  that  on  September  18,  1901,  the  said  plaintiff 
acquired  title  to  said  goods  and  chattels  by  purchase  from 
said  Avery  as  trustee  aforesaid,  the  said  Avery  being  duly  au- 
thorized by  said  District  Court  to  make  sale  of  said  goods  and 
chattels;  and  that  the  plaintiff  in  this  action,  relying  upon 
such  title  acquired  as  aforesaid  from  said  Avery,  specially  sets 
up  and  claims  that  said  title  was  acquired  under  an  authority 
exercised  under  the  United  States  within  the  meaning  of 
section  709  of  the  Revised  Statutes  of  the  United  States." 

A  similar  averment  was  also  embodied  in  a  reply  filed  at  the 
same  time  to  that  part,  of  the  answer  of  defendant  which  sets 
up  *'  a  former  judgment  as  a  bar."  Certain  other  matters  were 
also  stated  in  the  replication  in  avoidance  of  the  effect  of  the 
adjudication  in  the  equity  cause,  but  they  need  not  be  par- 


128  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 

ticularly  referred  to,  as  no  contention  based  upon  them  was 
pressed  at  bar  or  called  to  our  attention  in  any  form. 

The  action  was  again  tried  to  a  jury,  who,  by  direction  of  the 
court,  returned  a  verdict  for  the  defendant.  The  cause  was 
again  heard  on  exceptions  in  the  Supreme  Judicial  Court  of 
Massachusetts,  and,  after  consideration  of  the  new  matter 
contained  in  the  replication  to  the  answer,  the  exceptions  were 
overruled.  Corbett  v.  Craven,  196  Massachusetts,  319.  The 
trial  court  thereupon  entered  judgment  on  the  verdict,  and 
this  writ  of  error  was  prosecuted. 

Mr.  Christopher  T.  Callahan  for  plaintiff  in  error: 
As  to  the  jurisdiction :  The  decision  of  the  state  court  that 
the  trustee's  authorized  sale  to  plaintiff  passed  no  title  pre- 
sents a  Federal  question.  It  is  not  as  though  the  state  court 
had  merely  the  question  on  principles  of  general  law.  This 
court  has  jurisdiction.  Scott  v.  Kelley,  22  How.  57;  Mays  v. 
FlUon,  20  Wall.  14;  McHenry  v.  La  SocUU,  95  U.  S.  58;  Davis 
V.  Friedlander,  104  U.  S.  570,  575;  McKenna  v.  Simpson,  129 
U.  S.  506;  Cramer  v.  Wilson,  195  U.  S.  408.  The  state  court's 
rejection  of  the  trustee's  title  rested  not  on  conditions  existing 
at  time  he  acquired  it  but  on  a  subsequent  official  act.  For 
other  cases  in  which  this  court  has  taken  jurisdiction  in  cases 
involving  title  of  persons  holding  under  Federal  authority,  see 
Clements  v.  Berry,  11  How.  398,  408;  Bvck  v.  Colbath,  3  Wall. 
334,  340;  Sharp  v.  Doyle,  102  U.  S.  686;  New  Orleans  R.  R,  v. 
Ddamore,  114  U.  S.  501,  506;  WiUiams  v.  Heard,  140  U.  S.  529, 
535;  Stanley  v.  SchwoXby,  147  U.  S.  508,  519;  Hussman  v. 
Durham,  165  U.  S.  144;  Aldrich  v.  Aetna,  8  Wall.  491;  Du- 
passier  v.  Rochereau,  21  Wall.  130;  O'Brien  v.  Wdd,  92  U.  S. 
81;  Baldwin  v.  Stark,  107  U.  S.  463;  Pittsburg  &c.  R.  R,  v. 
Long  Island  Co,,  172  U.  S.  493;  Publishing  Co,  v.  Beckwith, 
188  U.  S.  567;  Yates  v.  Jones  National  Bank,  206  U.  S.  155, 
167. 

A  Federal  question  is  presented  by  the  contention  that  due 
effect  is  denied  to  a  decree  of  the  Federal  court  in  sustaining 


KENNEY  V.  CRAVEN.  129 

215  U.  8.  Opinion  of  the  Court. 

a  plea  of  res  judicata.    National  Foundry  v.  Oconto  Water  Co,, 
183  U-  S.  216,  distinguishing  Avery  v.  Popper,  179  U.  S,  305. 

Mr,  Charles  G.  Gardner  for  defendant  in  error : 
As  to  the  jurisdiction:  A  Federal  question  is  not  presented 
merely  because  the  plaintiff  claims  title  from  one  who  derives 
his  authority  to  sell  from  a  Federal  statute.  Blackburn  v.  Port- 
land Mining  Co.,  175  U.  S.  571,  579;  Continental  Bank  v.  Bu- 
ford,  191  U.  S.  119,  125. 

Mr.  Justice  Whtte,  after  making  the  foregoing  statement, 
delivered  the  opinion  of  the  court. 

The  assertion  that  this  court  has  jurisdiction  is  based  upon 
the  contention  of  the  plaintiff  in  error  that  he  specially  set  up 
in  his  replication  filed  below  a  title  acquired  under  an  au- 
thority exercised  under  the  United  States,  that  is,  a  purchase 
of  property  from  a  trustee  in  bankruptcy  under  the  sanction 
of  the  bankruptcy  court,  and  that  such  title  was  denied  by  the 
decision  of  the  state  court.  We  are  not  called  upon  to  con- 
sider these  propositions  from  a  purely  abstract  point  of  view, 
since,  of  course,  we  are  only  required  to  determine  their  im- 
port in  so  far  as  they  are  involved  in  the  decision  of  the  ques- 
tion arising  on  the  record.  Confining  our  contemplation  to 
that  subject  it,  we  think,  becomes  clear  that  the  contentions 
are  wholly  irrelevant  to  the  question  of  jurisdiction  concerning 
which  they  are  advanced  and  relied  on.  We  say  this,  because 
it  is  obvious  on  the  face  of  the  record  that  the  court  below 
rested  its  decision  solely  on  the  ground  that  the  plaintiff,  as  a 
purchaser  pendente  lite  from  the  trustee,  was  bound  by  the 
decree  rendered  against  the  trustee  in  the  equity  cause,  and 
that,  giving  to  that  decree  the  effect  which  it  was  entitled  to 
have  as  the  thing  adjudged,  under  general  principles  of  law 
it  operated  to  estop  the  trustee  and  the  plaintiff,  his  privy, 
from  asserting  title  to  the  property.  As,  therefore,  the  court 
below  did  not,  as  an  original  question,  consider  and  pass  upon 
VOL.  ccxv — 9 


130  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  8. 

the  nature  and  character  of  the  rights  of  the  parties  arising 
from  the  transaction  of  purchase  and  sale,  but  its  judgment 
was  solely  based  upon  the  operation  and  effect  of  the  prior 
judgment  between  the  parties  or  their  privies,  it  follows  that 
the  decision  of  the  case  was  placed  upon  no  Federal  ground 
but  involved  solely  the  decision  of  a  question  of  general  law, 
that  is,  the  effect  and  scope  of  the  thing  adjudged  as  arising 
from  the  prior  judgment  of  the  state  court.  Chouteau  v. 
Gibson,  111  U.  S.  200;  San  Francisco  v.  ItseU,  133  U.  S.  65; 
Covington  v.  First  Nat,  Bank,  198  U.  S.  100,  107.  Indeed  the 
fallacy  underlying  all  the  contentions  urged  in  favor  of  our 
jurisdiction  and  the  arguments  of  inconvenience  by  which 
those  propositions  are  sought  to  be  maintained,  in  their  ulti- 
mate conception  involve  the  assumption  either  that  the  cor- 
rectness of  the  state  decree,  which  was  held  to  be  res  jvdicataf 
is  open  for  consideration  on  this  record,  or  assail  the  con- 
clusively settled  doctrine  that  the  scope  and  effect  of  a  state 
judgment  is  peculiarly  a  question  of  state  law,  and  therefore 
a  decision  relating  only  to  such  subject  involves  no  Federal 
question. 

Dismissed  for  ward  of  jurisdiction. 


THE  STEAMSHIP  JEFFERSON.^ 

APPEAL  FROM  THE  DISTRICT  COURT  OF  THE  liNITED  STATES  FOR 

THE  EASTERN  DISTRICT  OF  VIRGINIA. 

No.  243.    Submitted  May  17,  1909.— Decided  November  29,  1909. 

Where  the  District  Court  has  allowed  an  appeal,  but  has  not  certified 
that  the  question  of  jurisdiction  alone  was  involved,  as  required  by 
§  5  of  the  act  of  March  3, 1891,  c.  517, 26  Stat.  826,  if  it  appears  from 
the  face  of  the  record,  irrespective  of  recitals  in  the  order,  that  the 

^  Docket  title,  Simmons,  late  Master  of  the  Tug  Helen,  and  Others, 
r.  The  Steamship  Jefferson,  The  Old  Dominion  Steamship  CJompany, 
Claimant  and  Owner. 


THE  STEAMSHIP  JEFFERSON.  131 

215  U.  S.  Argument  for  Appellanto. 

cause  was  dismissed  for  want  of  jurisdiction,  the  question  of  juris- 
diction, if  it  is  of  such  a  character  as  to  sustain  the  appeal,  is  suf- 
ficiently certified.    United  States  v.  Larkin,  208  U.  S.  333. 

Where  the  case  is  dismissed  because  the  character  of  the  action  is  one 
cognizable  exclusively  by  a  court  of  admiralty  and  the  jiuisdiction 
is  challenged  because  the  situation  of  the  vessel  and  the  character 
of  the  services  rendered  afforded  no  jurisdiction  in  admiralty,  the 
jurisdiction  of  the  court  as  a  Federal  court  is  involved  and  the  case 
is  one  cognizable  by  this  court  under  }  5  of  the  act  of  1891. 

Salvage  service,  over  which  a  court  of  admiralty  has  jurisdiction,  may 
arise  from  all  perils  which  may  encompass  a  vessel  when  on  waters 
within  the  admiralty  jurisdiction  of  the  United  States,  and  this  in- 
cludes services  rendered  to  a  vessel  undergoing  repairs  in  dry  dock 
and  in  danger  of  being  destroyed  by  fire  which  originated  on  land. 

A  vessel  used  for  navigation  and  commerce  does  not  cease  to  be  a  sub- 
ject of  admiralty  jurisdiction  because  temporarily  in  a  dry  dock 
without  water  actually  flowing  around  her. 

158  Fed.  Rep.  255,  reversed. 

The  facts,  which  involved  the  jurisdiction  of  the  admiralty 
court  of  a  case  for  salvage  services  rendered  to  a  vessel  in  dry 
dock  and  in  peril  from  a  fire  originating  on  land,  are  stated  in 
the  opinion. 

Mr.  R.  T.  Thorp,  Mr.  Henry  Bowden  and  Mr.  D.  Lawrence 
Groner  for  appellants : 

The  jurisdictional  question  is  properly  certified.  Shields  v. 
Coleman,  157  U.  S.  176;  Interior  Construction  Co.  v.  Gibney, 
160  U.  S.  217;  ChappeU  v.  United  States,  160  U.  S.  499;  Mer- 
riU  V.  Bov)doin  College,  167  U.  S.  745;  FilMol  v.  Forney,  194 
U.  S.  356;  Petri  v.  Creelman,  199  U.  S.  487;  Excelsior  Co.  v. 
Pacific  Bridge  Co.,  185  U.  S.  282.  The  jurisdiction  of  the 
Federal  court  was  denied  as  such.  Dudley  v.  Lake  County, 
103  Fed.  Rep.  209;  Sun  Printing  Co.  v.  Edwards,  121  Fed. 
Rep.  826.  A  vessel  is  not  removed  from  admiralty  jurisdic- 
tion because  at  the  time  it  is  in  dry  dock,  for  such  jurisdiction 
depends  not  on  whether  the  vessel  is  actually  afloat  but  on  the 
purposes  for  which  it  is  used.  The  Old  Natchez,  9  Fed.  Rep. 
476.    So  also  admiralty  does  not  lose  jurisdiction  over  a  naviga- 


132  OCTOBER  TERM,  1909. 

Argument  for  Appellee.  215  U.  S. 

ble  river  because  at  times  the  river  becomes  imnavigable.  Nd- 
son  V.  Lelandy  22  How.  18.  Although  a  dry  dock  itself  may 
not  be  a  subject  of  salvage  service,  Cope  v.  Vedette  Dry  Dock 
Co.,  119  U.  S.  625,  as  to  repairs  in  dry  dock,  see  Perry  v. 
Haines;  191  U.  S.  17;  Simpson's  Dock  v.  Steamship  Co.,  108 
Fed.  Rep.  425;  The  Sapho,  44  Fed.  Rep.  359;  Hoffner  v. 
Crane,  115  Fed.  Rep.  404;  United  States  v.  Coombs,  12  Pet. 
72.  That  the  fire  originated  on  land  is  immaterial;  vessels 
afloat  saved  by  being  towed  from  a  land  fire  are  subject  to 
salvage.  Kaiser  Wilhdm  der  Grosse,  106  Fed.  Rep.  963; 
The  J,  I.  Brady,  109  Fed.  Rep.  912;  The  Barge  No,  127,  113 
Fed.  Rep.  529;  The  Old  Natchez,  9  Fed.  Rep.  476;  The  Lone 
Star,  35  Fed.  Rep.  793;  Gnnby  v.  The  Khio,  46  Fed.  Rep.  207; 
The  Oregon,  27  Fed.  Rep.  871;  Wilson  v.  Winchester,  30  Fed. 
Rep.  204.  Admiralty  jurisdiction  extends  to  a  salvage  suit 
for  services  rendered  from  land  to  a  vessel  burning  at  a  wharf. 
The  HuntsmUe,  12  Fed.  Gas.  No.  6,916;  and  see  The  EUa,  48 
Fed.  Rep.  569,  as  to  salvage  for  digging  out  vessel  which  had 
been  driven  ashore. 

Mr.  Walter  H.  Taylor  and  Mr.  Harrington  Putruim  for  ap- 
pellee : 

This  court  is  without  jurisdiction.  The  appeal  should  have 
been  taken  to  the  Circuit  Court  of  Appeals.  If  to  this  court 
it  is  not  properly  certified  \mder  §  5  of  the  act  of  1891.  Louis- 
ville Trust  Co.  V.  Knott,  191  U.  S.  225;  Smith  v.  McKay,  161 
U.  S.  358;  Maynard  v.  Hechl,  151  U.  S.  324;  Blyihe  Co.  v, 
Blythe,  172  U.  S.  644;  ScAw;e«r  v.  Brown,  195  U.  S.  171. 

The  decision  below  was  correct  and  the  libel  properly  dis- 
missed. Quenching  a  fire  on  a  ship  in  emptied  dry  dock  is  not 
a  basis  of  salvage.  The  Warfield,  120  Fed.  Rep.  847;  The 
Robt.  W.  Parsons,  191  U.  S.  17.  The  Jefferson  was  not  saved 
from  a  peril  of  the  sea.  1  Parson's  Mar.  Ins.,  544;  Phillips 
V.  Barber,  5  B.  &  Aid.  161;  Frame  v.  EUa,  48  Fed.  Rep.  569. 

The  property  salved  must  be  a  vessel  engaged  in  commerce  or 
the  cargo  of  a  vessel .    The  Murphy  Tugs,  28  Fed.  Rep.  429 ;  The 


THE  STEAMSHIP  JEFFEKSON.  133 

315  U.  S.  Ophiioa  of  the  Ck>urt. 

Island  City,  1  Lowell,  375;  The  Pulaski,  33  Fed.  Rep.  383;  The 
Hendrick  Hudson,  3  Benedict,  419;  S.  C,  Fed.  Cas.  No.  6,355. 

Salvage  is  only  awarded  for  saving  property  from  sea  perils. 
Mason  v.  Ship  Blaireau,  2  Cranch,  240,  266;  Benedict's  Ad- 
miralty, 3d  ed.,  §  300;  TA^  Emviaus,  1  Sumner,  207;  2  Kent's 
Com.,  *245;  Desty's  Shipping  and  Admiralty,  §303;  Af. 
Benefante,  5  Revue  Int.  du  Droit  Maritime,  568;  Schaps  Das 
Deutsche  Seerecht,  701;  Sieveking,  Gennan  Law  Relating  to 
Carriage  of  Goods  by  Sea,  Eng.  trans.,  p.  145;  The  Merchant 
Prince,  Hanseatische  Gerichszeitung,  1888,  Part  I,  No.  120, 
p.  276;  Burchard  on  Salvage,  Hanover,  1897,  p.  29. 

English  courts  before  1821,  could  not  award  salvage  for 
services  between  high  and  low  water  mark.  11  Ency.  Laws 
of  Eng.,  368;  Benedict's  Adm.,  §  111;  Kennedy,  Law  of  Civil 
Salvage,  2d  ed.,  p.  2.  In  England  and  the  United  States  the 
question  of  locality  is  important  as  admiralty  courts  alone 
can  award  salvage.  Ex  parte  Boston,  95  U.  S.  68;  50,000  Feet 
of  Lumber,  2  Lowell,  64.  Fire  originating  on  land  is  not  a  sea 
peril.  The  Plymouth,  3  Wall.  20;  and  as  to  adhering  to  ancient 
limits  of  admiralty  jurisdiction,  see  Cleveland  Terminal  Co,  v. 
Steamship  Co.,  208  U.  S.  315;  The  Troy,  208  U.  S.  321;  The 
Poughkeepsie,  162  Fed.  Rep.  494;  Adm.  Juris,  of  Torts  by 
Mr.  Justice  Brown  in  Columbia  Law  Review,  January,  1909. 

In  the  absence  of  sea  perils  claims  for  salvage  rewards  are 
against  public  policy  and  the  tendency  of  later  cases  is  not 
to  enlarge  but  to  restrict  the  subjects  of  salvage.  Gas  Float 
Whittan,  App.  Cos.  [1897],  337;  Cope  v.  VaUette  Dry  Dock, 
119  U.  S.  625;  Hughes'  Handbook  of  Admiralty,  129.  Ship- 
owners' suits  against  owners  of  dry  docks  for  injuries  on  the 
dock  depend  for  admiralty  jurisdiction  on  maritime  nature  of 
contract  and  on  locality.  The  Sapho,  48  Fed.  Rep.  359;  Wait- 
man  V.  Griffiths,  3  Blatchf  ord,  528 ;  but  see  The  Professor  Morse, 
23  Fed.  Rep.  803. 

Mr.  Justice  Whtfe  delivered  the  opinion  of  the  court. 
From  a  decree  dismissing  this  smt  for  want  of  jurisdiction 


134  OCTOBER  TERM,  1909. 

Opiiiioii  of  the  Court.  215  U.  S. 

the  present  direct  appeal  is  prosecuted.  Dismissal  of  the  ap- 
peal is  moved  on  the  ground  that  the  jurisdiction  of  the  court 
below  was  not  involved  in  the  sense  of  the  fifth  section  of  the 
act  of  March  3,  1891,  c.  517,  26  Stat.  826,  and,  in  any  event, 
because  the  question  of  jurisdiction  was  not  certified  as  re- 
quired by  that  act. 

The  libel  by  which  the  suit  was  commenced  was  filed  on 
behalf  of  the  master  of  the  tug  Helen,  for  himself  and  others 
entitled  to  participate,  in  a  salvage  allowance  if  made.  The 
cause  of  action  was  thus  stated : 

''  1.  That  in  the  afternoon  of  the  twenty-fifth  day  of  De- 
cember, 1906,  the  tug  Helen  whereof  said  E.  W.  Simmons  was 
Master,  and  having  a  crew  of  six  men  besides  said  master,  was, 
together  with  the  tug  AUce,  towing  a  certain  barge  from  Nor- 
folk, in  said  district,  to  the  piers  of  the  Chesapeake  and  Ohio 
Railway  Company  at  Newport  News,  in  said  district;  that 
about  foiu-  or  foiu'-thirty  o'clock  on  said  day,  when  said  tugs 
had  arrived  almost  at  their  destination  at  Newport  News, 
it  was  discovered  that  a  fire  was  raging  in  the  ship  yard  of  the 
Newport  News  Ship  Yard  and  Dry  Dock  Company,  and  there- 
upon the  libellant,  with  the  said  tug  Helen,  docked  his  tow 
at  one  of  the  said  piers  of  the  Chesapeake  and  Ohio  Railway 
Company,  and  proceeded  with  all  possible  speed  to  the  said 
fire: 

''  2.  That  when  libellant  arrived  at  the  said  ship  yard  it  was 
found  that  a  large  and  fierce  fire  was  raging  therein  and  that 
said  steamship  Jefferscm,  which  had  been  undergoing  repairs 
at  the  said  ship  yard,  was  locked  in  one  of  the  dry  docks  out 
of  which  the  water  had  been  emptied,  and  was  afire,  her  upper 
works  being  then  in  full  Uaie  and  her  huU  smoking  through- 
out neariy  its  whole  length;  that  there  was  no  one  on  board  at 
the  time  and  no  one  could  ha>-e  stayed  aboard  under  the  cir- 
cumstances: that  the  water  [Hpes  intended  for  the  use  of  the 
fire  department  were  froien  up  and  there  was  no  water  avail- 
able for  their  use,  and  that  this,  together  with  the  fact  that 
the  Jefferson  was  in  a  peculiar  and  inaccessible  situation  being 


THE  STEAMSHIP  JEFFERSON.  135 

215  U.  8.  Opinion  of  the  Court. 

in  a  dry  dock,  rendered  the  fire  engines  and  fire  department 
totally  unable  to  render  any  assistance  whatsoever;  under 
which  circumstances  said  steamer  would  have  been  completely 
destroyed  but  for  the  assistance  rendered  by  libellant  and 
other  salvors  hereinafter  mentioned : 

''3.  That  thereupon  libellant  with  his  said  tug  Helen  and 
crew  lay  at  a  bulkhead  of  one  of  the  piers  as  close  to  the  said 
dry  dock  as  possible,  and  together  with  the  tugs  Alice  and 
James  Smith,  Jr.,  played  streams  of  water  from  their  fire  hose 
upon  said  steamship  Jefferson,  and  continued  so  to  do  until 
the  fire  was  completely  extinguished;  that  libellant  and  other 
salvors  were  thus  engaged  from  about  four-thirty  o'clock  in 
the  afternoon  of  said  day  until  about  eight-thirty  o'clock  at 
night,  during  all  of  which  time  libellant  and  said  salvors 
rendered  every  possible  assistance  to  said  steamship,  and 
during  all  of  which  time  libellant  and  others  entitled  as  salvors 
as  aforesaid,  underwent  great  suffering  from  smoke,  flame 
and  sparks,  and  endured  great  hardship  from  exposure  to  the 
wind  and  water  in  the  bitter  coldness  of  the  weather,  and 
libellant  and  other  salvors  incurred  great  danger  from  said 
smoke,  flames  and  sparks,  and  from  electric  wires,  falling 
poles,  adjacent  burning  bmldings,  etc. 

"4.  That  the  said  steamship  Jefferson  is  of  great  value; 
that  the  aforementioned  efforts  and  services  rendered  by 
libellant  and  other  salvors  saved  the  said  steamship  from 
total  and  complete  destruction;  that  libellant,  by  reason  of 
the  hardships  necessarily  incurred,  and  especially  by  reason  of 
the  nature  and  the  great  importance  of  the  services  rendered 
in  saving  said  steamship,  reasonably  deserved  to  have,  and 
therefore  claim  a  commensurate  reward  for  salvage  therefor." 

By  an  intervening  petition  the  crew  of  the  tug  Helen  and 
the  masters  and  crews  of  two  other  tugs,  the  James  Smith,  Jr., 
and  the  Alice,  asserted  claims  to  salvage,  on  the  groimd  that 
they  had  rendered  services  at  the  same  time  and  under  the 
same  conditions  as  those  which  the  libel  alleged  had  been 
rendered  by  the  Helen.    The  libel  and  intervening  petition 


136  OCTOBER  TERM,  1909. 

OpinioD  of  the  Court.  215  U.  S. 

were  excepted  to  by  the  owner  and  claimant  of  the  Jefferson 
upon  these  grounds : 

"First.  That  the  property  proceeded  against  was  not  at 
sea  or  on  the  coast  of  the  sea  or  within  public  navigable 
waters  or  on  the  shores  thereof. 

"Second.  That  the  property  proceeded  against  was  not  a 
vessel  engaged  in  maritime  commerce. 

"Third.  That  the  libellants  did  not  render  any  service  at 
sea  or  in  saving  property  from  any  peril  of  the  sea. 

"Fourth.  That  there  is  not  shown  any  sea  peril  or  such 
peril  as  may  be  the  basis  of  a  claim  for  salvage. 

"  Fifth.  That  the  Jefferson  while  in  a  dry  dock,  from  which 
all  the  water  had  been  emptied,  when  threatened  with  fire 
from  land  was  not  a  subject  of  salvage  services. 

"Sixth.  That  there  is  not  shown  any  admiralty  or  mari- 
time lien  upon  the  Jefferson  in  favor  of  the  libellants  for 
salvage." 

The  court,  on  January  14,  1908,  handed  down  an  opinion, 
stating  its  reasons  for  concluding  that  the  exceptions  were 
well  taken,  and  hence  that  it  had  no  jurisdiction  over  the 
cause.  158  Fed.  Rep.  358.  On  the  twenty-ninth  of  the  same 
month  a  final  decree  was  entered  dismissing  the  libel  and 
intervening  petitions.    In  this  decree  rt  was  recited: 

"The  court  is  of  opinion,  for  the  reasons  stated  in  the 
opinion  filed  on  the  fourteenth  day  of  January,  1908,  that 
it  is  without  jurisdiction  in  the  premises  and  that  the  excep- 
tions should  be  sustained.     .     .    ." 

In  the  following  July  the  present  appeal  was  prayed  on 
the  ground  that,  as  the  court  had  dismissed  the  case  for  want 
of  jurisdiction,  its  action  was  susceptible  of  review  by  direct 
appeal  to  this  court.  In  its  order  allowing  the  appeal  the 
court  stated  that  "the  claim  of  appeal  is  allowed  as  prayed 
for  from  the  final  order  and  decree  dismissing  said  cause  for 
want  of  jurisdiction.  .  .  ."  As  upon  the  "face  of  the 
record,  irrespective  of  the  recitals  in  the  order  made  on  the 
allowance  of  the  appeal,  it  is  apparent  that  the  only  question 


THE  STEAMSHIP  JEFFERSON  137 

215  U.  S.  Opinion  of  the  Court. 

which  was  decided  below  was  one  of  jurisdiction^  and  as  the 
decree,  which  was  appealed  from,  on  its  face  shows  that  the 
cause  was  dismissed  for  want  of  jurisdiction,  the  question  of 
jurisdiction,  if  it  is  of  such  a  character  as  to  sustain  the  appeal, 
was  suflBciently  certified.  United  States  v.  Larkin,  208  U.  S. 
333,  338.  We  therefore  put  the  contentions  as  to  the  absence 
of  a  certificate  out  of  view. 

It  is  settled  that,  under  the  act  of  1891,  in  orJcr  to  entitle 
to  a  direct  appeal  from  the  decree  of  a  District  or  Circuit  Court 
dismissing  a  cause  for  want  of  jurisdiction,  the  decree  which  is 
sought  to  be  reviewed  must  have  involved  the  jurisdiction 
of  the  court  below  as  a  Federal  court.  Louisville  Trust  Co.  v. 
Camingar,  184  U.  S.  18;  Schweer  v.  Brovm,  195  U.  S.  171. 
Relying  upon  this  doctrine,  the  contention  is  that  the  appeal 
was  wrongfully  allowed,  because,  although  it  may  be  that  in 
form  of  expression  the  court  below  dismissed  the  suit  for  want 
of  jurisdiction,  its  action  was,  in  substance,  alone  based  upon 
the  conclusion  that  the  facts  alleged  were  insuflBcient  to  au- 
thorize recovery,  even  although  the  cause  was  within  the 
jurisdiction  of  the  court.  The  claim  which  the  libel  asserted 
was  for  salvage  compensation,  and  it  therefore  presented  a 
character  of  action  cognizable  exclusively  by  a  court  of  ad- 
miralty of  the  United  States.  Houseman  v.  The  Cargo  of  the 
Schooner  North  Carolina,  15  Pet.  40,  48.  It  is  clear  that  th6 
exceptions  to  the  libel  and  intervening  petition  challenged 
the  jurisdiction  of  the  court  over  the  cause  of  action  which 
the  libel  asserted,  because,  from  the  situation  of  the  vessel, 
the  place  where  the  alleged  salvage  services  were  rendered,  and 
the  nature  and  character  of  those  services,  they  afforded  no 
basis  for  the  jurisdiction  of  the  court  as  a  court  of  admiralty 
of  the  United  States.  That  this  was  also  the  conception  upon 
which  the  court  below  acted  in  dismissing  the  libel  and  inter- 
vening petition  is  apparent  from  its  opinion  and  the  terms  of 
the  decree  which  we  have  previously  referred  to.  After  stat- 
ing the  elements  constituting  a  salvage  service,  the  court  ob- 
served (158  Fed.  Rep.,  p.  359) : 


138  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

"These,  however,  have  relation  to  perils  encountered  and 
services  rendered  and  performed  to  vessels  actually  engaged 
in  commerce,  either  on  the  high  seas  or  other  public  navi- 
gable waters.  .  .  The  Jefferson,  at  the  time  of  the 
service  sued  for,  was  not  a  medium  of  commerce  subject  to 
dangers  and  hazards  of  the  sea.  She,  on  the  contrary,  was  in 
an  imseaworthy  condition,  undergoing  repairs.  She  could 
not  move  of  her  own  volition  nor  could  she  be  moved  at  the 
time  in  furtherance  of  commerce.  She  was  neither  pursuing 
nor  capable  of  engaging  in  her  ordinary  business  of  naviga- 
tion of  the  seas." 

Again,  in  considering  the  averments  of  the  libel  concern- 
ing the  origin  of  the  fire  which,  it  was  alleged,  enveloped 
the  Jefferson,  and  which,  it  was  asserted,  had  been  extin- 
guished by  the  exertions  of  the  alleged  salvors,  the  court 
observed,  p.  360: 

"This  language  makes  it  clear  that  the  peril  in  which  the 
Jefferson  was  placed  arose  from  a  fire  on  the  shore,  and  that 
there  was  no  peril  in  connection  with  the  sea  or  the  naviga- 
tion thereof." 

In  simiming  up  its  conclusion  the  court  said,  p.  361 : 

"The  mere  fact  that  the  property  upon  which  the  fire  was 
extinguished  was  that  of  a  vessel  will  not  suffice.  There  must 
have  been  a  sea  peril  from  which  it  was  rescued,  and  the  ves- 
sel itself  must  have  been  at  the  time  the  subject  of  a  sea  peril, 
in  order  to  support  a  maritime  lien  and  afford  jurisdiction 
in  rem  in  the  admiralty." 

As  the  foregoing  considerations  demonstrate  that  the  case 
was  dismissed  below  because  of  the  conclusion  that  there  was 
no  jurisdiction  as  a  Federal  court  over  the  subject-matter  of 
the  controversy,  it  results  that  the  motion  to  dismiss  is  with- 
out merit.  Cope  v.  Vailette  Dry  Dock  Co,,  119  U.  S.  625;  The 
Resolute,  168  U.  S.  ^7  \  Cleveland  Terminal  &  Valley  R.  R.  Co. 
V.  Cleveland  Steamship  Co.,  208  U.  S.  316;  DuhUh  &  S.  Bridge 
Co.  V.  The  Troy,  208  U.  S.  321;  Sadly  v.  Bird,  209  U.  S.  481; 
Globe  Newspaper  Co.  v.  WaUca-,  210  U.  S.  356. 


THE  STEAMSHIP  JEFFERSON.  139 

215  U.  8.  Opinion  of  the  Court. 

Passing  to  the  merits,  the  question  is  this :  Did  the  facts  set 
forth  in  the  libel  frima  facie  state  a  claim  for  salvage  within 
the  admiralty  jurisdiction? 

The  contention  on  the  part  of  the  appellee  that  a  nega- 
tive answer  should  be  given  to  this  question  is  based  upon 
the  propositions  which  controlled  the  action  of  the  court 
below.  They  are:  a,  That  at  the  time  the  services  sued  for 
were  rendered  the  Jeflferson  was  in  a  dry  dock  undergoing 
repairs,  was  not  on  the  sea,  but  was  virtually  on  the  shore, 
and  was  consequently  at  such  time  not  an  instrumentality  of 
navigation,  subject  to  the  dangers  and  hazards  of  the  sea; 
6,  The  services  were  not  rendered  in  saving  the  Jefferson  from 
a  maritime  peril,  as  the  danger  relied  on  arose  outside  of  the 
admiralty  jurisdiction  and  not  in  connection  with  the  sea  or 
the  navigation  thereof.  We  shall  consider  the  contentions 
together. 

In  the  nature  of  things  it  is  manifest,  and  indeed  it  is  set- 
tled, that  because  of  the  broad  scope  of  the  admiralty  jurisdic- 
tion in  this  country,  the  perils  out  of  which  a  salvage  service 
may  arise  are  all  of  such  perils  as  may  encompass  a  vessel 
when  upon  waters  which  are  within  the  admiralty  jurisdiction 
of  the  United  States,  from  which  it  follows,  that  the  right 
to  recover  for  salvage  services  is  not  limited  to  services  con- 
cerning a  peril  occurring  on  the  high  seas  or  within  the  ebb 
and  flow  of  the  tide.  And  although  in  defining  salvage  the  ex- 
pression "peril  of  the  sea''  has  sometimes  been  used  as  equiv- 
alent to  peril  on  the  sea,  it  is  settled  that  the  distress  or  danger 
from  which  a  vessel  has  been  saved  need  not,  in  order  to 
justify  a  recovery  of  salvage  compensation,  have  arisen  solely 
by  reason  of  a  peril  of  the  sea  in  the  strict  legal  acceptation 
of  those  words.  The  varied  character  of  services  upon  which 
a  claim  to  salvage  may  be  based  was  pointed  out  in  the  defi- 
nition of  salvage  given  in  the  opinion  in  The  BlackwaU,  10 
Wall.  1,  where  it  was  said  (p.  12) :  *' Salvage  is  the  compensa- 
tion allowed  to  persons  by  whose  assistance  a  ship  or  her 
cargo  has  been  saved,  in  whole  or  in  part,  from  impending 


140  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

peril  on  the  sea,  or  in  recovering  such  property  from  actual 
loss,  as  in  cases  of  shipwreck,  derelict  or  recapture." 

In  The  BlackwaU  the  facts,  in  substance,  were  thesie:  An 
English  ship,  with  cargo  aboard  and  ready  to  sail,  while  lying 
at  anchor  in  the  harbor  of  San  Francisco,  about  seven  or 
eight  hundred  yards  from  the  wharves,  was  discovered  to  be 
on  fire.  A  steam  tug  was  utilized  in  conveying  alongside  of 
the  ship  members  of  the  fire  department  and  two  steam  fire 
engines  belonging  to  the  city.  After  the  fire  had  been  extin- 
guished the  tug  took  the  ship  in  tow  and  safely  placed  her  on 
adjacent  flats,  in  charge  of  her  master  and  crew.  Upholding 
the  right  of  the  owners  of  the  steam  tug  and  her  master  and 
crew  to  salvage  compensation,  the  court  said  (p.  11) : 

"Service,  imdoubtedly,  was  performed  by  the  members  of 
the  fire  department;  but  it  is  a  mistake  to  suppose  that  service 
was  not  also  performed  by  the  steam  tug,  as  it  is  clear  that 
without  the  aid  of  the  steam  tug  and  the  services  of  her 
master  and  crew  the  members  of  the  fire  company  would 
never  have  been  able  to  reach  the  ship  with  their  engines  and 
necessary  apparatus,  or  to  have  subdued  the  flames  antl  ex- 
tinguished the  fire.  Useful  services  of  any  kind  rendered  to 
a  vessel  or  her  cargo,  exposed  to  any  impending  danger  and 
imminent  peril  of  loss  or  damage,  may  entitle  those  who 
render  such  services  to  salvage  reward. 

"Persons  assisting  to  extinguish  a  fire  on  board  a  ship,  or 
assisting  to  tow  a  ship  from  a  dock  where  she  is  in  imminent 
danger  of  catching  fire,  are  as  much  entitled  to  salvage  com- 
pensation as  persons  who  render  assistance  to  prevent  a  ship 
from  being  wrecked,  or  in  securing  a  wreck  or  protecting  the 
cargo  of  a  stranded  vessel."  The  Rosalie ,  1  Spink,  188;  East- 
em  Monarch,  Lush.  81 ;  The  Tees,  Lush.  505;  Williams  &  Bruce 
Adm.  Prac.  92. 

The  case  of  The  Rosalie  was  one  of  salvage  of  a  vessel  in 
danger  from  a  fire  at  sea,  and  among  other  things  treated  as 
constituting  the  salving  services  was  the  unloading  of  the 
cargo  upon  land.    In  The  Teef^,  salvage  was  awarded  for  tow- 


THE  STEAMSHIP  JEFFERSON.  141 

215  XT.  S.  Opinion  of  the  Court. 

ing  to  a  place  of  safety  a  vessel  lying  in  a  dock  and  in  danger 
of  catching  fire  from  the  surrounding  warehouses  which  were 
in  flames.  To  the  English  cases  cited  in  the  opinion  in  The 
BlackwaU  may  be  added  that  of  The  City  of  Newcastle,  7 
Asp.  Mar.  Cas.  (N.  S.)  546.  That  case  was  heard  before  Jus- 
tice Bruce,  assisted  by  the  Trinity  Masters,  and  the  facts  in 
brief  were  as  follows :  A  fire  broke  out  on  board  a  vessel  which 
was  lying  alongside  a  jetty  at  the  entrance  to  a  dock.  The 
vessel  was  under  repairs,  with  no  steam  up,  and  had  no  one 
but  the  master  and  watchman  on  board.  At  the  request  of 
the  master  a  steamship,  which  had  just  arrived,  hove  along- 
side, and  getting  her  hose  on  board  the  burning  vessel,  ex- 
tinguished the  fire,  which,  if  it  had  remained  unchecked, 
would  have  caused  a  very  serious  damage.  The  services  were 
such  as  might  have  been  rendered  by  a  fire  engine  on  shore. 
The  value  of  the  salved  vessel  was  £9,500.  The  defendants 
tendered  £200.  The  court  upheld  the  tender,  being  of  opin- 
ion that  the  services  were  not  of  such  character  as  to  require 
that  the  award  should  be  assessed  upon  the  same  liberal  prin- 
ciples as  obtained  in  the  ordinary  cases  of  sea  salvage  rendered 
by  one  ship  to  another. 

And  the  doctrine  of  The  BhckwaR  and  the  other  cases  just 
reviewed  was  in  substance  reiterated  in  The  Clarita  and  The 
Clara,  23  Wall.  1.  In  that  case  remuneration  was  claimed 
by  the  libellants  as  owners  of  the  steam  tug  Clarita  for  sal- 
vage services  rendered  by  the  tug  and  the  officers  and  crew, 
in  subduing  a  fire  on  board  the  schooner  Clara.  While  at 
anchor  in  the  middle  of  the  Hudson  River  the  Clara  caught 
fire  from  contact  with  a  burning  ferryboat,  which,  after  being 
towed  from  a  ferry  slip,  had  gotten  adrift.  It  was  not  ques- 
tioned that  the  services  intrinsically  considered  were  salvage 
services,  but  because  the  injiuy  to  the  schooner  was  occa- 
sioned by  the  fault  of  the  tug,  whose  owner,  master  and  crew 
asserted  the  salvage  claim,  the  right  to  salvage  was  denied. 
And  the  principles  just  announced,  when  duly  appreciated, 
also  establish  that  the  Jefferson  while  in  dry  dock  undergoing 


144  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.S. 


SCULLY  V.  SQUIER 

ERROR  TO  THE  SUPREME   COURT   OP  THE  STATE  OF  IDAHO. 
No.  21.     Argued  November  5,  1909.--Decided  November  29,  1909. 

Where  plaintiff  bases  his  biU  on  the  contention  that  under  the  town- 
site  law,  §  2387,  Rev.  Stat.,  the  ascertainment  of  boundaries  by 
official  survey  is  a  condition  subsequent  upon  which  the  vesting  of 
the  equitable  rights  of  the  occupant  depends,  the  construction  of  a 
law  of  the  United  States  is  involved,  and,  if  passed  on  adversely  by 
the  state  court,  this  court  has  jurisdiction  imder  §  709,  Rev.  Stat., 

.  to  review  the  judgment. 

The  object  of  local  legislation  authorized  by  the  townsite  law,  §  2387, 
Rev.  Stat.,  is  to  consummate  the  grant  of  the  Grovemment  to  the 
townsite  occupants — not  to  alter  or  diminish  it — and  in  this  cAse  the 
construction  by  the  state  court  of  the  territorial  statute  followed  to 
the  effect  that  the  trustee  and  surveyor  had  no  power  to  alter  or  di- 
minish the  holdings  of  bona  fide  occupants  by  laying  out  or  widening 
streets. 

13  Idaho,  428,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  H,  Winship  Wheatley,  with  whom  Mr.  Ben  F.  Tweedy 
was  on  the  brief,  for  plaintiff  in  error : 

As  to  the  jurisdiction:  The  legal  title  after  entry  and  until 
patent  to  the  mayor-trustee  was  in  the  United  States,  Hussey 
V.  Smith,  99  U.  S.  20;  Ashby  v.  HaU,  119  U.  S.  526;  Cofield  v. 
McClelland,  16  Wall.  331;  Stringfellow  v.  Cain,  109  U.  S.  610, 
and  one  having  an  equitable  title  had  an  absolute  right  to 
have  his  title  confirmed  by  the  trustee  under  §  2387,  Rev. 
Stat.,  the  townsite  law.  Hussman  v.  Durham,  165  U.  S.  144; 
Chever  v.  Homer,  142  U.  S.  122;  McDonough  v.  MiUandon,  3 
How.  693. 

When  the  question  decided  by  the  state  court  is  not  merely 
of  weight  or  sufficiency  of  evidence  but  of  its  competency  and 
effect  as  bearing  on  question  of  Federal  law  jurisdiction  to  re- 


SCULLY  V.  SQUIER.  ^  145 

215  n.  S.  Argument  for  Plaintiff  in  Error. 

view  exists.  Dower  v.  Richards,  151  U.  S.  658;  Mackey  v. 
Dillon,  4  How.  419;  Almonester  v.  Kenton,  9  How.  1. 

The  mayor-trustee  was  an  officer  of  both  the  Federal  and 
Territorial  governments.  Anderson  v.  Barlets,  3  Pac.  Rep. 
225;  Ming  v.  Foote,  23  Pac.  Rep.  515;  Helena  v.  Albertose,  20 
Pac.  Rep.  817. 

For  other  cases  on  the  jurisdiction  of  this  court  to  review 
decisions  involving  confirmation  of  title. and  authority  of 
United  States  officers,  see  Maguire  v.  Tyler,  1  Black,  196; 
Carondelet  v.  St.  Louis,  1  Black,  179;  Mobile  Transp.  Co.  v. 
Mobile,  187  U.  S.  479;  Canal  Co.  v.  Paper  Co.,  172  U.  S.  58; 
Hussman  v.  Durham,  165  U.  S.  144;  Nor.  Pac.  R.  R.  Co.  v. 
CoOmm,  164  U.  S.  383;  Shively  v.  Bowlby,  152  U.  S.  1 ;  Picker- 
ing  V.  Lomaz,  145  U.  S.  310;  Anderson  v.  Carkins,  135  U.  S. 
483;  NeUson  v.  Lagon,  7  How.  772;  Chouteau  v.  Eckhart,  2 
How.  334;  Pollard  v.  Kibbe,  14  Pet.  353;  Wallace  v.  Parker,  6 
Pet.  680;  Ross  v.  Barland,  1  Pet.  655;  Water  Power  Co.  v.  Green 
Bay  Canal  Co.,  178  U.  S.  254;  11  Cyc.  936;  Stanley  v.  Schwalby, 
162  U.  S.  255. 

Under  §  2387,  Rev.  Stat.,  the  entry  initiates  the  grant  col- 
lectively and  the  grant  to  the  individual  cannot  take  effect 
until  the  extent  of  his  occupancy  has  been  defined.  Newhouse 
V.  Semini,  3  Washington,  648,  652;  Ashby  v.  Hall,  119  U.  S. 
526.  The  grant  was  not  confirmed  until  the  official  survey  was 
subsequently  filed,  and  the  survey  after  confirmation  cannot 
be  impeached,  and  power  exists  to  have  the  grant  correctly 
surveyed  before  individual  rights  attach.  Moore  v.  Walla 
Walla,  2  Pac.  Rep.  187;  Boise  City  v.  Flanagan,  53  Pac.  Rep. 
453;  Laughlin  v.  Denver,  50  Pac.  Rep.  917;  GaU  v.  Galloway, 
4  Pet.  332;  Haydd  v.  Dufresne,  17  How.  23;  Greer  v.  Mezes,  24 
How.  268;  Cragin  v.  PfnoeU,  128  U.  S.  691. 

The  mayor-trustee  had  no  power  to  deed  any  person  a  part 
of  a  surveyed  street.  Amador  County  v.  Gilbert,  65  Pac.  Rep. 
130;  Pachen  v.  Ashby,  1  Pac.  Rep.  130;  §  3,  Idaho  Territorial 
Act;  Stale  v.  Wd>ster,  72  Pac.  Rep.  295. 

The  deeds  and  the  official  survey  are  conclusively  binding 
VOL.  ccxv — 10 


br  ^nrnif  ji  Sjesiel  215  U.  S. 


*,rj^  -T^Kcrac:^  zi  ffr:r.  »zji  *n?y  esc  ^kyv  mi  eqm- 
tori^t:  rljCX:^  ci  j£d  Vi  the  auni  *'?kr^e*i  bj  then  and  have 
ufA  \t^.  k)g^  v:>  iO  acj  cc  h.  Tb?  Lizi.i  -r^ki^vd  by  them 
(iriTirA  a  pan  of  the  Coc^rpsBccnl  ^rmnt  :o  the  aggnPEprinn,  to 
the  ettj  <^  Lftwi-tctu  pr>sieg&i':c  oc  5u»:i  l»zid  has  been,  at  aQ 
iirr^ji  •ir>^  the  aerep^ance  of  deeds  uj:«jq  :he  official  survey  of 
D  irtn^,  if  an j  por-'irA-ion  dates  bac^  to  this  period,  wrongful 
arid  unlawftil  and  the  maintenance  of  a  pmale  and  pabGe 
niiii^aDic^,  gi^'ing  no  poe^essor  theref^  any  rights  in  law  or  in 
e^jujty  an  agaiaot  the  city  cm*  as  against  the  plaintiff  in  error. 
{l^ii¥%  fnxpra;  WoodruU  v.  Mining  Co^  9  Sawy.  513,  517;  5.  C, 
18  ¥f:il  Rep,  753 ;  3/iH*  v.  HalL  9  Weni  315;  McLean  v.  /nm 
JFr^Jbi,  83  Pac.  Rep.  1083;  ITof/e  v.  SuUiran,  32  N.  E.  Rep. 
1018;  flaU  v.  BreyfrjgU,  70  N.  E.  Rep.  883;  Blin  v.  Blankenskip, 
77  .S.  W,  R/;p,  919;  ViUage  of  Lee  \.  Harris,  69  N.  E.  Rep.  230; 
Atlantic  City  v.  Snee,  52  Atl.  Rep.  372;  LewisUm  v.  BootA,  34 
Vai%  R^5p,  809;  fTeftfr  v.  Birmingham,  9  So.  Rep.  161;  OdUoiid 
V,  Oakland  Co.,  50  Pac.  Rep.  277;  Orena  v.  Santa  Barbara,  28 
Parj,  Rep.  268;  MHU  v.  Lo^  Angeles,  27  Pac.  Rep.  354;  Visala 
v.  JacdbSf  4  Pac.  Rep.  433;  People  v.  Pope,  53  California,  437; 
Sullivan  v.  Tichner,  53  N.  E.  Rep.  759;  Cheek  v.  Aurora,  92 
Indiana,  107;  Lee  v.  il/wnd  Station,  8  N.  E.  Rep.  759;  Waterloo 
V.  f/nion  Mitt«  Co.,  34  N.  W.  Rep.  197;  Louisiana  &c.  Co.  v. 
Nm)  Orleans,  9  So.  Rep.  21 ;  Sheen  v.  Stothart,  29  La.  Ann.  630; 
^ifw;  Orleans  v.  Magoon,  4  Mart.  (La.)  2;  Thibodeaux  v.  Mo^ 
f/To/«,  4  La.  Ann.  73 ;  Witherspoon  v.  Meridian,  13  So.  Rep.  843; 
VirkHhurg  v.  Marshall ,  59  Mississippi,  563;  Territory  v.  Deegan, 
W  Montana,  82;  Hoboken  Land  Co.  v.  Hoboken,  36  N.  J.  L.  540; 
.SVa/fl  V.  Trenton,  30  N.  J.  L.  198;  Jersey  C%  v.  State,  30  N.  J. 
I^  521 ;  Tainter  v.  Morrison,  18  N.  J.  L.  46;  Cross  v.  Morrison, 
\H  N.  J.  L.  306;  Jersej/  CUy  v.  Morm  CanoZ  Co.,  12  N.  J.  Eq. 
.VI 7;  Orpfian  Aaylum  v.  Troy,  32  Am.  Rep.  286;  Morrison  v. 
Nrw  York  Co.,  74  Hun  (N.  Y.),  398;  Milhau  v.  Sharp,  27  N.  Y. 
611:  Mills  V.  /fo/Z,  9  Wend.  (N.  Y.),  315;  Commonwealth  v. 
MiH^rhiSul,  12  Atl  Rep.  424;  Kopf  v.  r^/ter,  101  Pa.  St.  27; 
Kittaning  At't^dttny  \\  Broivn,  41  Pa,  St,  269;  Baxter  v.  Com- 


SCULLY  V.  SQUIER.  147 

215X7.8.  Argument  for  Defendant  in  Error. 

monweaUhj  3  Penn.  &  W.  253;  ComnumweaUh  v.  McDonald,  16 
Sei^.  &  R.  (Pa.)  390;  Philadelphia  v.  Crump,  1  Brewst.  (Pa.) 
320;  Philadelphia  v.  Friday,  6  PhUadelphia,  276;  Chafe  v. 
Aiken,  35  S.  E.  Rep.  800;  Sims  v.  Chattanooga,  2  Lea  (Tenn.), 
694;  Memphis  v.  Lenore  R.  Co,,  6  Coldw.  (Tenn.)  412;  Raht  v. 
Smthem  R.  Co.,  50  S.  W.  Rep.  72;  Pates  v.  TTarrcn/on,  84 
Virginia,  337;  Taylor  v.  ComnumweaUh,  29  Gratt.  (Va.)  780; 
Ralston  v.  T7es^  33  S.  E.  Rep.  326;  Teas  v.  St.  Albans,  17  S. 
E.  Rep.  400;  Childs  v.  iVefeon,  33  N.  W.  Rep.  587;  Simplot  v. 
Chicago  R.  Co.,  5  McCreary,  158;  Grogan  v.  Hayward,  6  Sawy. 
498;  Miller  y.  Indianapolis,  101  Indiana,  200. 

The  enclosure  and  possession  of  a  platted  street  which 
has  been  dedicated  are  immaterial,  however  long  continued. 
Cases  supra;  Hall  v.  BreyfogU,  70  N.  E.  Rep.  883;  Wolfe  v. 
Sullivan,  32  N.  E.  Rep.  1018;  Village  v.  Harris,  69  N.  E.  Rep. 
230. 

The  possession  relied  upon  by  the  defendants  in  error  has 
at  all  times  been  wrongful  and  unlawful  and  they  encroach 
upon  the  legal  and  lawful  street  with  an  occupation  which  de- 
prives the  plaintiff  in  error  of  his  rights  under  the  laws  of  Con- 
gress and  he  should  have  a  mandatory  injunction  against 
them;  for  the  appurtenant  rights  of  the  plaintiff  in  error  are 
not  confined  to  the  front  of  his  lot,  but  extend  to  that  part  of 
the  street  in  front  of  adjoining  lots.  Dooly  Block  v.  Salt  Lake 
Co.,  33  Pac.  Rep.  229;  First  National  Bank  v.  Tyson,  32  So. 
Rep.  144;  Lakr  v.  Metropolitan  Co.,  104  N.  Y.  268;  Beaver  v. 
Baltimore  &c.  Co.,  58  Atl.  Rep.  21;  Dill  v.  Board,  10  L.  R.  A. 
281;  Healy  v.  Kelly,  54  Atl.  Rep.  588;  McLean  v.  Llewellyn 
Iron  Works,  83  Pac.  Rep.  1083;  Tilly  v.  Mitchell  &  Lewis  Co., 
98  N.  W.  Rep.  969;  HoU  v.  BreyfogU,  70  N.  E.  Rep.  883;  Wolfe 
V.  Sullivan,  32  N.  E.  Rep.  1018;  Atlardic  City  v.  Snee,  52  Atl. 
Rep.  372;  Bohne  v.  Blankenship,  77  S.  W.  Rep.  919. 

Mr.  James  H.  Forney  and  Mr.  Isham  H.  Smith  for  defendant 
in  error  submitted : 
The  writ  of  error  should  be  dismissed.    There  is  no  Federal 


148  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

question.  The  only  question  is  one  of  boundary.  TeUuride 
Co.  V.  Rio  Grande  Ry.  Co.,  175  U.  S.  639;  Mardand  v.  Page,  20 
How.  523;  Lanfear  v.  Hurdey,  4  Wall.  204;  McDonough  v. 
Milandon,  3  How.  693;  Almonester  v.  KenUmy  9  How.  1; 
Farmers'  Heirs  v.  Eslava,  9  How.  420;  Fanners'  Heirs  v.  Mo- 
bile, 9  How.  451. 

The  judgment  is  sustained  on  grounds  other  than  Federal. 
Chapman  Land  Co.  v.  Bigelow,  206  U.  S.  41 ;  Rutland  R,  R.  Co. 
V.  Central  Vermont  R.  R.  Co.,  159  U.  S.  630. 

The  nature  of  the  grant  under  the  Federal  townsite  laws,  is 
that  of  confirmation  of  rights  in  existence.  No  new  grant  is 
made — simply  the  ascertainment  of  rights  already  in  existence, 
and  their  certification.  This  is  analogous  to  the  deed  of  con- 
firmation described  by  Blackstone.  ScvUy  v.  Fix,  13  Idaho, 
471 ;  Goldberg  v.  Kidd,  68  N.  W.  Rep.  574;  Pueblo  v.  Budd,  36 
Pac.  Rep.  599;  Cofield  v.  McCleUand,  16  Wall.  334;  String- 
fellow  V.  Cain,  99  U.  S.  610;  Tovm  Co.  v.  Maris,  11  Kansas, 
128-151;  Rathbone  v.  Sterling,  25  Kansas,  444;  Helena  v. 
Albertose,  20  Pac.  Rep.  817;  McCloskey  v.  Pac.  Coast  Co.,  160 
Fed.  Rep.  194. 

The  mayor-trustee  and  the  surveyor  were  not  "granting" 
lands  to  these  occupants.  Their  rights  and  duties  were  pre- 
scribed by  the  law  itself,  and  neither  could  by  exceeding  the 
power  given  him,  divest  property  rights  nor  defeat  vested 
rights.  United  States  v.  Thurber,  28  Fed.  Rep.  56;  Parcher  v. 
Ashby,  1  Pac.  Rep.  204;  Ashby  v.  Hall,  119  U.  S.  526;  Bing- 
ham V.  Walla  Walla,  13  Pac.  Rep.  408;  Goldberg  v.  Kidd,  48 
N.  W.  Rep.  574;  Cofield  v.  McClelland,  16  WaU.  334;  Treadway 
v.  Wilder,  8  Nevada,  91 ;  Alimany  v.  Petduma,  38  California, 
553;  Aspen  v.  Rucker,  10  Colorado,  184;  Town  Co.  v.  Maris,  11 
Kansas,  128;  Rathbone  v.  Sterling,  25  Kansas,  444. 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

The  relation  of  the  parties  to  the  cause  of  action  is  the  same 
in  this  court  as  in  the  state  courts,  and  we  will  refer  to  plaintiflf 


SCULLY  V.  SQUIER.  149 

315  U.  S.  Opinion  of  the  Court. 

in  error  as  plaintiff  and  to  the  defendants  in  error  as  defend- 
ants. 

The  pleadings  in  the  case  are  exceedingly  voluminous  and 
equally  so  are  the  findings  of  fact.  It  is  enough  for  our  purpose 
to  say  that  the  city  of  Lewiston,  State  of  Idaho,  was  entered 
as  a  townsite  under  §  2387  of  the  Revised  Statutes,  herein- 
after quoted,  and  a  patent  was  issued  by  the  United  States  to 
the  mayor  of  the  city  in  trust  for  the  occupants  of  the  lands 
conveyed.  In  pxuBuance  of  the  trust  the  mayor  executed 
conveyances  to  the  predecessors  in  title  of  plaintiff  and  de- 
fendants. The  rights  derived  through  these  deeds,  and  the 
occupation  of  the  land  preceding  and  subsequent  to  them,  and 
the  effect  of  a  survey  made  by  one  E.  P.  True,  hereinafter  re- 
ferred to,  and  the  plat  thereof  filed  by  him,  constitute  the 
questions  in  the  case.  Plaintiff  seeks  by  this  suit  to  enjoin  de- 
fendants from  encroaching  on  D  street,  as  laid  down  on  said 
plat,  by  certain  buildings  which,  it  is  alleged,  they  proposed 
to  erect.  It  is  prayed,  besides,  that  the  buildings,  if  erected 
before  an  injunction  can  be  obtained,  be  declared  a  public 
nuisance,  ''damaging  the  public  and  this  plaintiff's  private 
rights,"  and  be  abated.  The  special  damage  alleged  is  that 
plaintiff,  having  erected  a  building,  on  what  he  alleges  to  be 
the  true  boundary  line  of  D  street,  will  be,  as  it  was  said  in  the 
argument,  "put  into  a  hole"  by  the  buildings  of  defendant 
projecting  beyond  it,  and  that  light  and  air  thereto,  through 
the  doors  and  windows  of  plaintiff's  building,  will  be  .pre- 
vented, and  the  view  therefrom  to  all  parts  of  D  street  ob- 
structed, and  that  "the  light  and  air  and  view  from  all  parts 
of  the  said  D  street  as  the  said  building  [plaintiff's  building] 
is  constructed,  necessarily  ensue  and  benefit  the  said  property 
materially,  and  are  of  great  value  to  the  plaintiff,  and  as  is 
also  the  right  of  egress  and  ingress." 

It  is  further  alleged  that  before  erecting  his  building  plain- 
tiff applied  to  the  city  engineer  to  be  shown  the  original  south 
line  of  D  street  according  to  the  original  survey,  and  the 
engineer  ran  "the  lines  on  the  ground  according  to  the  said 


160  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

original  survey  and  plat,"  and  that  plaintiff  erected  his  build- 
ing in  accordance  therewith,  "  covering  the  entire  lot." 

It  is  also  alleged  that  the  lots  owned  by  defendants  were 
conveyed  by  the  mayor  to  the  original  owners  according  to  the 
original  survey,  and  "  deeds  thereto  accepted  according  to  the 
said  original  survey  and  plat,  and  said  lots  have  since  been 
conveyed  to  the  defendants  and  their  grantors  according  to 
the  said  original  survey  and  plat."  A  dedication  of  the  street 
to  the  public  is  averred  as  hence  resulting,  and  an  estoppel 
against  defendants  to  dispute  the  survey  and  plat.  The  an- 
swer of  the  defendants,  in  effect,  denies  the  correctness  of  the 
survey  and  plat  made  by  True,  and  avers  that  there  was  an 
amendment  of  the  latter  which  exhibited  the  streets  and  alleys 
according  to  the  occupation  of  the  respective  claimants  of  the 
lots.  It  is  admitted,  however,  that  some  of  the  deeds  issued 
were  in  accordance  with  the  plat,  but  it  is  denied  that  all  the 
deeds  were,  and  averred  "that  the  same  were  in  accordance 
with  the  use  and  occupation  of  the  lands  prior  to  the  survey, 
and  with  the  said  survey  and  plat,  as  the  same  were  and  had 
been  amended." 

The  findings  of  the  trial  court  sustained  these  averments, 
and  found  further  that  the  True  survey  as  originally  made 
disregarded  the  Unes  of  occupation  of  the  lots,  and  "ran 
through  buildings  then  in  the  actual  use  and  occupancy  of 
the  claimants  of  land  and  cut  off  approximately  four  feet  from 
the  north  end  of  buildings  there  standing  and  in  actual  use  and 
occupation  of  bona  fide  claimants." 

A  decree  was  passed  dismissing  the  suit,  which  was  aflirmed 
by  the  Supreme  Court.    13  Idaho,  417. 

All  of  the  parties,  as  we  have  said,  denved  their  rights  and 
titles  under  §  2387  of  the  Revised  Statutes,  providing  for  the 
reservation  and  sale  of  townsites  on  the  pubUc  lands.  That 
section  is  as  foUows: 

"  (Entry  of  town  authorities  in  trust  for  occupants.)  When- 
ever any  portion  of  the  public  lands  have  been  or  may  be 
settled  upon  and  occupied  as  a  townsite,  not  subject  to  entry 


SCULLY  V,  SQUIER.  151 

215  n.  S.  Opinion  of  the  Court. 

under  the  agricultural  preemption  laws^  it  is  lawful^  in  case 
such  town  be  incorporated,  for  the  corporate  authorities 
thereof,  and,  if  not  incorporated,  for  the  judge  of  the  county 
court  for  the  county  in  which  such  town  is  situated,  to  enter 
at  the  proper  land  office,  and  at  the  minimum  price,  the  land 
so  settled  and  occupied  in  trust  for  the  several  use  and  benefit 
of  the  occupants  thereof,  according  to  their  respective  in- 
terests; the  execution  of  which  trust,  as  to  the  disposal  of  the 
lots  in  such  town,  and  the  proceeds  of  the  sales  thereof,  to  be 
conducted  under  such  regulations  as  may  be  prescribed  by 
the  legislative  authority  of  the  State  or  Territory  in  which 
the  same  may  be  situated." 

We  have  not  recited,  nor  do  we  think  that  it  is  necessary  to 
recite,  all  of  the  facts  found  by  the  lower  courts.  We  may  add 
to  those  which  we  have  stated  that  the  city  of  Lewiston  was 
incorporated  under  the  laws  of  the  Territory  of  Washington, 
it  then  being  within  that  Territory,  and  was  reincorporated 
by  an  act  of  the  legislature  of  Idaho  in  1866,  it  then  being 
within  Idaho.  The  act  defined  the  boundaries  of  the  city. 
Levi  Ankeny  was  mayor  of  the  city  in  1871,  and  on  Novem- 
ber 21  of  that  year  he  filed  his  declaratory  statement  No.  39 
in  the  United  States  land  office  at  Lewiston,  proposing  to  enter 
the  lands  included  within  the  borders  of  the  city  as  incorpo- 
rated, in  trust  for  its  inhabitants,  claiming  settlement  in  1861. 
Cash  entry  was  made  for  the  lands  June  6, 1874,  by  Henry  W. 
Stainton,  mayor,  in  trust  for  the  inhabitants.  "  The  legislature 
of  the  Territory,  [we  quote  from  the  opinion  of  the  Supreme 
Court  of  the  State,  13  Idaho,  p.  428]  by  an  act  approved  Janu- 
ary 8, 1873  (7th  Sess.  Laws,  p.  16),  provided  for  the  survey, 
platting  and  disposal  of  the  land  in  the  city  of  Lewiston  pur- 
suant to  the  United  States  statutes  in  regard  to  such  matters. 
Said  act  provides  that  the  mayor-trustee  shall  cause  to  be 
made  and  filed  in  his  office  by  a  competent  person  a  plat  of  the 
land  within  said  city,  divided  into  blocks  and  lots,  and  'to 
make  and  deliver  to  the  bona  fide  occupants  of  such  portions 
of  said  lands  described  in  said  patent  from  the  Government  of 


152  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.S. 

the  United  States  who  may  be  entitled  thereto,  good  and  suf- 
ficient deeds  of  conveyance  in  fee  simple  according  to  their 
respective  rights.' 

"Under  the  provisions  of  said  laws  one  E.  B.  True  was  em- 
ployed to  survey  and  plat  the  lands  in  said  town,  and  was 
commanded  to  adjust  said  plat  so  as  to  conform  to  the  con- 
ditions of  the  improvements  and  the  use  and  occupation  of 
such  lands  by  the  settler,  and  the  mayor  was  required  to  make 
and  deliver  to  the  bona  fide  occupants  of  such  lands  good  and 
sufficient  deeds  of  conveyance  in  fee  simple,  according  to  their 
respective  interests,  under  the  provisions  of  said  law. 

"It  appears  from  the  evidence  in  the  case  that  said  True 
made  a  plat  of  said  town,  including  block  24,  in  which  block 
are  the  lots  involved  in  this  case,  so  as  to  make  the  lots  about 
forty-six  feet  long,  north  and  south,  when,  as  a  matter  of  fact, 
most,  if  not  all  of  the  lots  in  that  block  were  fifty  feet  long, 
north  and  south,  as  indicated  by  the  buildings  and  other  im- 
provements thereon.'' 

The  Supreme  Court  said,  13  Idaho,  p.  429 : 

"The  question  is  fairly  presented  as  to  whether  said  True 
had  any  authority  whatever  to  make  said  plat  so  as  to  inter- 
fere with  and  cut  off  a  part  of  the  buildings  and  improvements 
of  the  occupants  of  such  lots.  In  other  words  whether  under 
the  law  a  surveyor,  who  is  employed  to  plat  such  a  townsite 
after  its  entry  by  the  proper  officer,  can  widen  a  street,  and  in 
doing  so  cut  off  a  portion  of  the  buildings  and  improvements 
of  the  lot  owners  bordering  on  such  street." 

The  question  was  answered  in  the  negative,  and  the  judg- 
ment of  the  trial  court,  which  was  adverse  to  plaintiff,  was 
affirmed.  In  some  aspects  the  answer  may  be  said  to  have 
been  put  upon  the  statute  of  the  State  of  January  8,  1873, 
providing  for  the  survey,  platting  and  disposal  of  the  land. 
The  court  observed  that  there  was  no  dispute  that  the  evidence 
established  that  the  defendants  claimed  and  occupied  their 
lots  to  the  extent  they  had  claimed  for  many  years  prior  and 
subsequently  to  the  survey,  end  that  it  was  not  shown  or 


SCULLY  V.  SQUIER.  163 

215  U.  S.  Opinion  of  the  Court. 

claiined  that  part  of  the  lots  was  used  as  a  street,  nor  that  the 
city  ever  claimed  any  part  of  them  as  a  street.  And  it  was 
said  (p.  433) :  "The  city  surveyor  cannot  make  any  portion  of 
said  lots  a  street  by  simply  making  a  plat  and  indicating  on 
such  plat  that  said  lots  were  only  forty-five  or  forty-six  feet 
in  length/'  The  claim  by  defendants  was  of  fifty  feet.  The 
court  further  said  (p.  433):  "The  mayor-trustee,  had  no  ju- 
dicial power  in  this  matter — neither  had  the  surveyor.  The 
surveyor  and  mayor  cannot  dedicate  to  the  public  as  a  street  • 
parts  of  lots  occupied  and  possessed  by  individuals."  This,  it 
may  be  contended,  is  a  mere  construction  of  the  statute  of  the 
State  of  Idaho,  and  nothing  more,  in  other  words,  a  decision 
that  under  the  statute  there  was  no  power  given  to  make  a 
survey  or  plat  which  did  not  conform  to  the  lines  of  occu- 
pation. The  contention  of  plaintiffs,  however,  is  that  "the 
laws  of  Congress  authorize  an  official  ascertainment"  of  the 
boundaries  of  the  city,  and  "that  the  equitable  right  under 
the  said  laws  of  Congress  vests  upon  a  condition  subsequent, 
which  is  that  the  owner  of  the  equity  must  within  a  reasonable 
time  have  his  right  confirmed  by  the  trustee  upon  an  official 
survey  ascertaining  and  settling  its  boundaries  and  nature, 
and  that  the  laws  of  Congress  require  each  townsite  occupant 
to  see  to  it  that  the  official  ascertainment  is  true  and  correct 
and  satisfactory  before  accepting  confirmation  of  his  equitable 
rights  from  the  mayor,  trustee."  It  is  hence  insisted  that  a 
construction  of  the  laws  of  Congress  is  involved.  This  con- 
tention, we  think,  is  the  basis  of  plaintiff's  bill  of  complaint, 
and  it  seems  also  to  have  been  passed  on  by  the  Supreme 
Court  of  the  State.  The  court  said  (p.  433) :  "The  appellant 
[plaintiff  in  error  here]  rests  his  case  here  on  the  making  and 
approval  of  said  plat,"  (that  is,  the  plat  made  by  True,)  and 
the  contention  was  discussed.  We  think,  therefore,  the  motion 
to  dismiss  should  be  overruled. 

But  a  little  more  discussion  is  necessary  to  pass  on  its  merits. 
Section  2387  constitutes  the  grant  of  title,  and  it  is  very  ex- 
plicit as  to  grantees,  to  the  matter  granted,  and  for  whose  use 


154  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

it  is  granted.    The  grant  is  of  lands  occupied  as  a  townsite,  the 
grantees  are  the  corporate  authorities  thereof,  or  the  judge  of 
the  county  court  where  the  town  is  situated,  "  in  trust  for  the 
several  use  and  benefit  of  the  occupants  thereof,  according  to 
their  respective  interests."    And  the  legislation  of  Idaho,  en- 
acted in  pursuance  of  §  2387,  provides,  as  we  have  seen,  that 
the  mayor  shall  cause  to  be  made  and  filed  in  his  office  a  plat 
of  the  land  divided  into  lots  and  blocks,  but  it  is  also  provided 
that  he  is  required,  as  trustee,  "to  make  and  deliver  to  the 
bona  fide  occupants  of  such  portions  of  said  lands  described  in 
said  patent  from  the  Government  of  the  United  States,  who 
may  be  entitled  thereto,  good  and  sufficient  deeds  of  convey- 
ance in  fee  simple,  according  to  their  respective  rights."    The 
object  of  the  state  legislation,  therefore,  was  to  consummate 
the  grant  of  the  Government  to  the  occupants  of  the  land, 
not  to  alter  or  diminish  it.   The  grant  was  through  the  mayor 
to  the  occupants  of  the  lands.   The  extent  of  their  occupation 
was  the  extent  of  their  rights;  determined,  therefore,  the  re- 
lation of  their  lots  to  the  streets  and  alleys;  fixed  the  location 
of  the  streets  and  alleys.    Or,  as  it  is  epigrammatically  ex- 
pressed by  the  Supreme  Court  of  the  State,  "  It  must  be  kept 
in  mind  that  Lewiston  existed  prior  to  the  True  survey.    The 
settlers  did  not  acquire  their  right  under  the  plat  nor  by  virtue 
of  it.    The  survey  and  plat  was  made  for  them;  they  were  not 
made  for  the  survey  and  plat."    But  we  need  not  make  a  uni- 
versal application  of  this.    It  is  enough  for  the  present  case 
that  the  Supreme  Coiut  so  construed  the  power  of  the  mayor 
and  the  surveyor  under  the  Idaho  statute.    It  may  well  be 
contended,  however,  that  the  Supreme  Court  expressed  a  prin- 
ciple that  has  broader  application,  expressed  as  well  the  mean- 
ing of  the  act  of  Congress.     In  Ashby  v.  Hall,  119  U.  S.  526, 
this  court  said  (p.  529),  speaking  by  Mr.  Justice  Field,  "That 
the  power  vested  in  the  legislature  of  the  Territory  (Montana) 
in  the  execution  of  the  trust  (under  §  2387),  upon  which  the 
entry  was  made,  was  confined  to  regulations  for  the  disposal  of 
the  lots  and  the  proceeds  of  the  sales.   These  regulations  might 


SCULLY  V,  SQUIER.  155 

215  U.  S.  Opinion  of  the  Court. 

extend  to  provisions  for  the  ascertainment  of  the  nature  and 
extent  of  the  occupancy  of  different  claimants  of  lots,  and  the 
execution  and  delivery  to  those  found  to  be  occupants  in  good 
faith  of  some  oflBcial  recognition  of  title,  in  the  nature  of  a 
conveyance.  But  they  could  not  authorize  any  diminution  of 
the  rights  of  the  occupants  when  the  extent  of  their  occu- 
pancy was  established.  The  entry  was  in  trust  for  them,  and 
nothing  more  was  necessary  than  an  official  recognition  of  the 
extent  of  their  occupancy.  Under  the  authority  conferred  by 
the  townsite  act  the  legislature  could  not  change  or  close  the 
streets,  alleys  and  bloclcs  of  a  town  by  a  new  survey.  What- 
ever power  it  may  have  had  over  them  did  not  come  from  the 
act,  but,  if  it  existed  at  all,  from  the  general  grant  of  legisla- 
tive power  under  the  organic  act  of  the  Territory.''  See  also 
StringfeUow  v.  Cain,  99  U.  S.  610;  Cofidd  v.  McClelland,  16 
Wall.  331 ;  HiLssey  v.  Smith,  99  U.  S.  20.  Many  state  cases  are 
to  the  same  effect,  and  may  be  found  in  the  notes  to  §  2387  in 
the  United  States  Federal  Statutes  Annotated,  vol.  6,  page  344 
et  seq. 

Further  discussion  is  unnecessary.  Plaintiff's  other  con- 
tentions are  either  disposed  of  by  the  facts  found  by  the  state 
courts  or  do  not  present  Federal  questions. 

JudgmerU  affirmed. 


156  OCTOBER  TERM,  1909. 

Argument  for  Runtford  Chemical  Worin.  215  U.  S. 


RUMFORD  CHEMICAL  WORKS  v.  HYGIENIC  CHEMI- 
CAL  COMPANY  OF  NEW  JERSEY. 

CERTIORARI  TO  THE  CIRCUIT  COURT  OF  APPEALS  FOR  THE 

THIRD  CIRCUIT. 

HYGIENIC  CHEMICAL  COMPANY  OF  NEW  YORK  v. 

RUMFORD  CHEMICAL  WORKS. 

CERTIORARI  TO  THE  CIRCUIT  COURT  OF  APPEALS  FOR  THE 

SECOND  CIRCUIT. 

No8.  9, 121.    Argued  November  1,  1909.— Decided  November  29, 1909. 

Although  in  subBequent  cases  a  party  may  have  proved  his  facts,  the 
question  when  here  must  be  decided  on  the  evidence  below  in  the 
particular  case. 

Although  one  not  a  party  may  have  contributed  to  the  expenses  of  a 
former  suit  by  reason  of  business  or  indirect  interest,  if  it  is  not 
shown  he  had  any  right  to  participate  in  the  conduct  of  the  case  he  is 
not  bound  as  a  privy. 

Where  the  Circuit  Court  and  Circuit  Court  of  Appeals  of  the  same 
circuit  agree  on  certain  facts  this  court  will  not  reverse  the  finding 
in  a  case  coming  from  that  circuit  notwithstanding  the  same  fact 
may  not  have  been  found  by  the  courts  of  another  circuit. 

154  Fed.  Rep.  65,  affirmed;  157  Fed.  Eep.  436,  reversed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Philip  Mauro,  with  whom  Mr.  C.A.L.  Ma&sie  was  on 
the  brief,  for  Rumf ord  Chemical  Works : 

A  prima  fade  case  against  both  Hygienic  companies  is 
made  out  by  the  admissions  without  the  aid  of  other  proof 
regardless  of  the  Clotworthy  deposition.  HuUer  v.  Stopper  Co., 
128  Fed.  Rep.  283;  UniM  Shirt  &  Collar  Co.  v.  Beattie,  149 
Fed.  Rep.  736,  742. 

There  was  no  denial  or  explanation  by  either  infringing 
company:  cases  supra  and  Signal  Co.  v.  Electric  Co.,  97  Fed. 
Rep.  810;  aff'd  107  Fed.  Rep.  284;  Hemdin  v.  Dyewood  Co., 


RUMFORD  CHEM.  WKS.  v.  HYGIENIC  CHEM.  CO.  157 
215  U.  S.      Argument  for  the  Hygienic  Chemical  Companies. 

131  Fed.  Rep.  483;  a£F'd  138  Fed.  Rep.  54;  certiorari  denied, 
199  U.  S.  608. 

The  Clotworthy  deposition  should  have  been  received.  A 
court  may  take  judicial  cognizance  of  its  own  records  in  a 
former  litigation,  especially  one  in  which  present  parties  were 
privies.  BviUr  v.  EcAoUj  141  U.  S.  240;  Aspen  Mining  Co,  v. 
BiRings,  150  U.  S.  31,  38;  Cr(Bmer  v.  Washington,  168  U.  S. 
124,  129;  Re  Boardman,  169  U.  S.  39,  44;  Bremahan  v.  Tripp 
Co,,  72  Fed.  Rep.  920;  Cushman  Box  Co.  v.  Goddard,  97  Fed. 
Rep.  664;  Des  Moines  Nav.  Co.  v.  Homestead  Co.,  123  U.  S.  552; 
United  States  v.  Des  Moines  Nav.  Co,,  142  U.  S.  510;  National 
Co.  V.  Dayton  Co.,  95  Fed.  Rep.  991,  996.  Both  the  Hygienic 
companies  were  "parties"  to  the  test  suit.  3  Robinson  on 
Patents,  §  1176;  Bobbins  v.  Chicago,  4  Wall.  657;  Penfield  v. 
Potts,  126  Fed.  Rep.  475,  480;  CromweU  v.  Sac  County,  94 
U.  S.  351. 

Mr.  Edwin  T.  Rice,  with  whom  Mr.  WiUard  Parker  Butler 
was  on  the  brief,  for  the  Hygienic  Chemical  Companies : 

Privity  was  not  shown  between  either  of  the  Hygienic 
companies  and  the  defendant  on  the  test  suit.  Privity  must 
be  aflSrmatively  shown.  Johnson  v.  Powers,  139  U.  S.  156; 
lAtchfield  V.  Goodnow,  123  U.  S.  549;  Thelier  v.  Hershey,  89 
Fed.  Rep.  575;  Felting  Co.  v.  Asbestos  Co.,  4  Fed.  Rep.  816; 
Telephone  Co.  v.  Telephone  Co.,  27  Fed.  Rep.  663;  Miller  v. 
Tobacco  Co.,  7  Fed.  Rep.  91 ;  Eagle  Co.  v.  Bradley  Co.,  50  Fed. 
Rep.  193;  S.  C,  57  Fed.  Rep.  980;  Box  Co.  v.  Paper  Co.,  95 
Fed.  Rep.  991;  Lane  v.  WeUs,  99  Fed.  Rep.  286. 

The  Circuit  Court  of  Appeals  of  the  Second  Court  erred  in 
taking  judicial  notice  of  matters  outside  the  record.  Stanley 
V.  McElrath,  86  California,  449;  Downing  v.  Howlett,  6  Colo. 
App.  291;  Adler  v.  Lang,  26  Mo.  App.  226;  Grace  v.  BaUau,  4 
S.  D.  333;  Re  Manderson,  51  Fed.  Rep.  501;  Streeter  y.Streeter 
43  Illinois,  155;  Taylor  v.  Adams,  115  Illinois,  570;  Loomis 
V.  GrijgHn,  78  Iowa,  482;  Granger  v.  Griffin,  78  Iowa,  759; 
Banks  v.  Bumam,  61  Missouri,  76;  Spurlock  v.  Mo.  Pac.  Ry., 


158  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

76  Missouri,  67;  Danid  v.  BeOany,  91  N.  C.  78;  PeojAe  v.  De 
La  Guerra,  24  California,  73;  Stale  v.  Ed/wards^  19  Missouri, 
674;  Baker  v.  Mygait,  14  Iowa,  131;  Allison  v.  Insurance  Co,, 
104  N.  W.  Rep.  753;  Re  Osborne,  115  Fed.  Rep.  1;  Bank  v. 
Taylor,  86  III.  App.  388;  Ralphs  v.  Hensler,  97  California,  296; 
McCormick  v.  Hemdon,  67  Wisconsin,  648;  -Bwix  v.  Miller ,  54 
Iowa,  551 ;  -Eyster  v.  (?a/,  91  U.  S.  521 ;  Stale  v.  Wilson,  39 
Mo.  App;  114;  WaJter  Co,  v.  Cowles,  31  California,  215;  1 
Wharton  on  Evidence,  §  326. 

The  chemical  company  failed  to  make  out  a  prima  facie  case. 
Bates  V.  Coe,  98  U.  S.  31,  49;  Royer  v.  CAicajfo  Af/gf.  Co.,  20 
Fed.  Rep.  853. 

The  extract  from  the  Clotworthy  deposition  was  inadmissi- 
ble as  against  the  Hygienic  companies.  Street  Railway  Co.  v. 
Gumby,  99  Fed.  Rep.  192;  Chase's  Stephen's  Evidence,  2d  ed., 
Art.  32;  Greenleaf  on  Evidence,  §  163;  Insurance  Co.  v.  Comr 
missioners,  117  Fed.  Rep.  82. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

These  are  two  suits  in  equity  brought  by  the  Rumford 
Chemical  Company  for  the  infringement  of  a  patent  for  baking 
powders;  one.  No.  9,  brought  in  the  Third  Circuit,  New  Jersey, 
against  the  Hygienic  Chemical  Company,  a  corporation  of  that 
State;  the  other,  No.  121,  brought  in  the  Second  Circuit,  New 
York,  against  a  New  York  corporation  of  the  same  name. 
The  two  cases  were  tried  on  substantially  the  same  record  and 
evidence,  with  the  result  that  in  New  Jersey  the  bill  was  dis- 
missed by  the  Circuit  Court  of  Appeals,  154  Fed.  Rep.  65;  83 
C.  C.  A.  177,  but  in  New  York  the  bill  was  sustained.  159  Fed. 
Rep.  436;  86  C.  C.  A.  416.  Writs  of  certiorari  were  granted 
by  this  court. 

The  defendants  rested  on  the  plaintiff's  evidence,  and  the 
question  in  both  suits  was  whether  a  prima  fade  case  had  been 
made  out.  It  did  not  appear  that  the  defendants  made  or 
sold  baking  powders  as  such,  but  the  New  Jersey  Company 
did  make  acid  phosphates  for  baking  powders  and  other  pur- 


RUMFORD  CHEM.  WKS.  v.  HYGIENIC  CHEM.  CO.  159 
215  U.  S.  Opinion  of  the  Court. 

poses,  and  the  New  York  Company  sold  the  great  part  of  its 
products.  The  plaintiff  contended  that  this  acid  phosphate 
had  the  characteristics  described  in  its  patent,  and  was  made 
and  sold  for  use  in  baking  powders,  and  that  the  manufacture 
and  sale  were  an  infringement  of  its  rights.  A  previous  de- 
cision, Rumfard  Chemical  Works  v.  New  York  Baking  Powder 
Co.,  134  Fed.  Rep.  385;  67  C.  C.  A.  367,  establishing  the  patent, 
was  relied  upon  as  a  test  case  by  which  the  defendants  were 
bound,  but,  except  the  final  decree,  entered  after  the  beginning 
of  the  present  suits,  the  record  was  not  put  in.  It  would  seem, 
from  a  late  case,  that  the  plaintiff  was  correct  in  point  of  fact. 
Provident  Chemical  Works  v.  Hygienic  Chemical  Co,,  170  Fed. 
Rep.  523,  but  the  question  here  must  be  discussed,  of  course, 
on  the  evidence  before  the  court  below.  The  question  is  ma- 
terial as  bearing  upon  the  admissibility  of  the  evidence  of  one 
Clotworthy,  since  dead,  given  in  the  suit  against  the  New  York 
Baking  Powder  Company,  upon  which  the  plaintiff  relied. 

Clotworthy  was  the  president  and  general  manager  of  the 
Clotworthy  Chemical  Company  and  was  a  manufacturer  of 
baking  powder.  He  testified  to  the  purchase  from  the  Hy- 
gienic Company  of  New  York  of  a  barrel  of  granular  acid 
phosphate,  shown  to  be  similar  to  that  described  in  the  plain- 
tiff's patent.  A  bill  from  the  New  Jersey  Company  and  a  re- 
ceipt from  the  New  York  Company  also  were  produced  and 
put  in.  The  courts  in  both  circuits  rightly  regarded  this  as  the 
most  important,  if  not  the  only  evidence  to  make  out  the  in- 
fringement alleged.  Therefore  it  was  necessary  that  the  plain- 
tiff should  prove  that  the  defendants  were  privy  to  the  New 
York  Baking  Powder  Company's  case. 

To  prove  privity  Heller,  the  president  of  the  defendant  com- 
panies, was  called  and  asked  as  to  his  testimony  on  the  former 
occasion.  He  admitted  that  he  then  had  testified  that  ''we 
are  manufacturers  of  granulated  acid  phosphate  and  are  selling 
to  the  trade  in  the  same  way  as"  the  former  defendants;  also 
that  he  had  testified  that  "we  have  [undertaken  to  assist  in 
bearing  the  burdens  of  this  defence  and  have  contributed  to 


160  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

the  defence]  financially  and  otherwise.''  By  the  natural  in- 
terpretation of  the  word  in  the  connection  in  which  it  was  used 
*we'  embraced  the  New  Jersey  company,  and  fairly  may  be 
argued  to  have  meant  both.  Heller  swore  that  these  answers 
were  true,  but  with  the  qualification  that  he  did  not  think  that 
the  New  Jersey  corporation  contributed  financially,  and  that 
he  did  not  remember  whether  it  did  otherwise.  All  the  courts 
agree  that  the  privity  of  the  New  Jersey  corporation  was  not 
made  out.  Probably  all,  and  at  least  the  Circuit  Court  of  Ap- 
peals and  the  Circuit  Court  for  the  Third  Circuit,  148  Fed.  Rep. 
862,  agree  that  if  Clotworthy's  testimony  is  excluded  infringe- 
ment is  not  proved.  We  should  not  revise  this  finding  of  both 
courts  on  the  facts,  and  therefore  it  follows  that  the  New 
Jersey  decree  must  be  affirmed.  The  evidence  on  both  sides  is 
discussed  in  148  Fed.  Rep.  862. 

It  appears  that  the  New  York  company  contributed  to  the 
expenses  of  the  former  case.  But  that  fact  alone  is  not  enough 
to  warrant  a  different  result.  The  agreement  disclosed  in  170 
Fed.  Rep.  523,  was  not  before  the  court.  We  may  reject  as 
extravagant  the  suggestion  that  the  contribution  may  have 
been  made  from  charitable  motives,  and  assume  that  it  was 
induced  by  reasons  of  business  and  indirect  interest,  but  it  was 
not  shown  that  as  between  the  present  and  former  defendants 
either  Hygienic  company  had  the  right  to  intermeddle  in  any 
way  in  the  conduct  of  the  case.  The  Hygienic  Companies 
would  have  been  glad  to  see  the  Rumf ord  patent  declared  void 
and  were  willing  to  pay  something  to  that  end.  That  was  all 
and  that  did  not  make  them  privies,  and  therefore  the  Clot- 
worthy  deposition  was  not  admissible  against  them.  LUchr 
fidd  V.  Goodnow,  123  U.  S.  549,  550.  Whether  if  it  had  been 
admitted,  infringement  could  have  been  inferred  from  the 
sale  of  a  barrel  of  granular  acid  phosphate  to  a  manufacturer  of 
baking  powder  need  not  be  considered.  There  was  other  evi- 
dence in  the  case. 

Decree  in  No,  9  affirmed. 
Decree  in  No,  121  reversed. 


STEWARD  v:  AMERICAN  LAVA  CO.  161 

215  U.  S.  Opinion  of  the  Court. 

STEWARD  V,  AMERICAN  LAVA  COMPANY. 

MORITZ  KIRCHBERGER  v,  AMERICAN  LAVA 

COMPANY. 

CERTIORARI   TO  THE   CIRCUIT  COURT   OF  APPEALS  FOR  THE 

SIXTH  CIRCUIT. 

Nob.  27, 28.    Argued  November  10, 11, 1909.— Decided  November  29, 1909. 

A  patent  cannot  be  sustained  when  the  theory  and  method  are  intro- 
duced for  the  first  time  in  unverified  amended  specifications. 

The  patent  for  a  tip  for  acetylene  gas  burners,  and  for  the  process  of 
burning  acetylene  gas,  held  to  be  void  by  the  court  below  and  by  this 
court  because  the  tip  was  not  new,  the  description  too  indefinite, 
the  amended  specifications,  which  were  unverified,  brought  in  new 
matter  and  the  claims  for  processes  so  called  were  only  claims  for 
the  functions  of  the  described  tip. 

155  Fed.  Rep.  731,  and  155  Fed.  Rep.  740,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr,  Charles  Neave,  with  whom  Mr,  F,  P,  Fish  and  Mr.  Wil- 
liam G.  McKrdght  were  on  the  brief,  for  petitioners. 

Mr,  Louis  C.  Raegener  for  respondents. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

These  are  bills  in  equity  brought  by  the  petitioners  to  re- 
strain the  infringement  of  Letters  Patent  No.  589342,  issued 
to  the  assignee  of  Edward  J.  Dolan,  and  dated  August  31, 
1897.  The  patent  was  held  invalid  by  the  Circuit  Court  of  Ap- 
peals for  the  Sixth  Circuit.  American  Lava  Co.  v.  Steward,  155 
Fed.  Rep.  731  and  740;  5.  C,  84  C.  C.  A.  157  and  166.  It  had 
been  sustained  by  the  Circuit  Court  of  Appeals  for  the  Second 
Circuit,  Kirchberger  v.  American  Acetylene  Burner  Co,,  128  Fed. 
Rep.  599;  S.  C,  64  C.  C.  A.  107,  and  a  writ  of  certiorari  was 
granted  by  this  court  to  the  first-mentioned  Circuit  Court  of 
Appeals. 

The  patent,  so  far  as  it  comes  in  question  here,  is  for  a  tip 
for  acetylene  gas  burners  and  for  the  process  of  burning  acety- 
VOL.  ccxv — 11 


162  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

lene  gas  in  the  mode  set  forth.  The  court  below  held  that  the 
tip  was  not  new,  that  the  description  was  too  indefinite,  that 
the  amended  specifications  brought  in  entirely  new  matter  not 
sworn  to,  and  that  the  claims  for  processes  so  called  were  only 
claims  for  the  functions  of  the  tip  described. 

A  few  words  as  to  the  conditions  and  knowledge  at  the  time 
of  the  alleged  invention  will  help  to  make  the  discussion  plain. 
Acetylene  gas  began  to  be  produced  on  a  large  scale  for  com- 
mercial purposes  about  1895.  It  is  very  rich  in  carbon,  and 
therefore  has  great  illuminating  power,  but  for  the  same  reason 
coupled  with  the  relatively  low  heat  at  which  it  dissociates  and 
sets  carbon  free,  it  deposited  soot  or  unconsumed  carbon  and 
soon  clogged  the  burners  then  in  use.  It  was  possible  to  secure 
a  complete  consumption  of  carbon  by  means  of  the  well- 
known  Bunsen  burner.  This  consists  of  a  tube  or  cylinder 
pierced  on  the  sides  with  holes  for  the  admission  of  the  air, 
into  one  end  of  which  a  fine  stream  of  gas  is  projected  through 
a  minute  aperture  and  from  the  other  end  of  which  it  escapes 
and  then  is  burned.  A  high  pressure  is  necessary  for  the  gas 
in  order  to  prevent  its  burning  back.  The  ordinary  use  of  the 
Bimsen  burner  is  to  develop  heat  and  to  that  end  a  complete 
combustion  of  course  is  desired.  But  with  an  immediately 
complete  combustion  there  is  little  light.  The  yellow  light  of 
candles  and  gas  jets  is  due  to  free  particles  of  carbon  at  a  red 
heat,  but  not  yet  combined  with  oxygen,  or,  as  we  commonly 
say,  consumed.  On  the  appearance  of  acetylene  gas  inventors 
at  once  sought  to  apply  the  principle  of  the  Bunsen  burner 
with  such  modifications  as  would  produce  this  result.  In 
doing  so  they  foimd  it  best  to  use  duplex  burners,  that  is, 
burners  the  outlets  of  which  were  inclined  toward  each  other 
so  that  the  meeting  of  the  two  streams  of  gas  formed  a  flat 
flame,  and  to  let  in  less  air. 

In  this  state  of  things  Dolan  filed  his  application  on  Febru- 
ary 18,  1897.  The  object  was  said  to  be  "to  provide  a  burner 
the  use  of  which  will  result  in  perfect  combustion  of  the  gas 
and  the  production  of  a  flame  which  will  afford  the  greatest 


.  STEWARD  V.  AMERICAN  LAVA  CO.  163 

215  U.  8.  Opinion  ot  the  Court. 

poesible  degree  of  light  from  a  given  amount  of  gas  consiuned." 
A  duplex  burner  on  the  Bunsen  plan  was  described,  but  with 
no  indication  of  any  patentable  device.  The  drawings  were 
merely  diagrams,  and,  with  reference  to  what  16  to  follow,  we 
may  mention  that  two  of  them  show  two  sets  of  air  holes, 
one  above  the  other,  and  that  the  specification  even  now  ex- 
pressly allows  '  two  or  more '  seta.  The  claims  were  rejected  on 
April  6,  1897,  and  in  the  same  month  Dolan  changed  his  at- 
torney. On  May  20  a  new  specification  and  new  claims  were 
filed  by  the  new  attorney,  but  not  sworn  to  by  Dolan,  and  on 
these,  with  no  material  change,  the  patent  was  granted.  In 
this  specification,  as  in  the  former,  though  in  different  words, 
it  is  said  that  "  in  order  to  prevent  the  deposit  of  carbon  within 
the  burner  or  at  the  burner  top  and  thereby  insiu^  a  perfect 
combustion  and  a  smokeless  Same  at  the  point  where  the  same 
is  formed,  I  provide  a  series  of  inclined  air  passages,  a,  a,  which 
lead  into  the  enlarged  passage,  E,  above  the  point  at  which 
the  contracted  opening,  C,  is  provided,"  •  The  inclined  air 
*  The  following  are  copies  of  Dolaa's  Fig.  1,  and  Fig.  2. 

•27  JET 


164  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  216  U.  S. 

passages  are  the  holes  in  the  sides  of  the  Bunsen  burner,  E  is 
the  cylinder,  or  tube,  and  the  contracted  opening,  C,  is  the 
point  at  which  the  gas  enters  the  tube.  This  device,  and 
nothing  else,  is  pointed  out  as  the  means  for  preventing  the 
clogging  of  the  tips.  A  preference  is  stated  for  a  burner  in 
duplex  form. 

In  the  new  specification,  however,  it  was  said  that  the  opera- 
tion 'seems  to  be'  that  the  gas  draws  in  on  all  sides  an  en- 
velope of  air  through  the  openings  o,  &c.,  so  far  stating  the 
Bunsen  principle,  but  adding  that  "the  result  of  this  arrange- 
ment seems  to  be  to  so  cool  the  outside  of  the  flame  as  to  pre- 
vent any  deposit  of  carbon  at  the  point  of  egress."  And  an- 
other paragraph  was  as  follows:  "The  structure  of  my  burner 
is  such  that  if  all  of  the  burner  were  cut  off  in  a  horizontal 
plane  immediately  above  the  outlet  C  [the  point  where  the 
gas  enters  the  upper  chamber]  the  general  shape  and  condition 
of  the  flame  would  not  be  modified,  but  in  this  case  an  im- 
mediate combustion  would  occur  at  the  outlet.  Under  the 
conditions  of  this  burner  the  point  where  the  gas  reaches  its 
kindling  temperature  is  carried  upward,  but  the  general  shape 
of  the  escaping  gas  body  is  not  materially  modified."  It  was 
stated  earlier  that  "the  result  here  accomplished  would  not  be 
accompUshed  in  an  ordinary  air-mixing  burner  in  which  the 
air  was  mingled  generally  with  the  body  of  the  gas,"  and  that 
"in  my  burner  an  absolutely  unobstructed  passage  is  pro- 
vided for  the  escape  of  the  original  jet  of  gas  formed  by  the 
constricted  opening  C.  By  reason  of  this  fact  it  is  substantially 
necessary  to  have  two  jets  if  a  flame  of  considerable  candle 
power  is  desired." 

The  claims  allowed  and  in  controversy  here  are  as  fol- 
lows: 

"1.  The  process  of  burning  acetylene  gas,  which  consists  in 
projecting  a  small  cylinder  of  gas,  in  surrounding  the  same 
with  an  envelop  of  air  insuflScient  to  cause  combustion  of  all 
the  gas,  and  in  finally  supplying  the  gas  with  an  additional 
amount  of  oxygen  by  allowing  the  stream  of  gas  to  expand 


STEWARD  V.  AMERICAN  LAVA  CO.  165 

215  U.  S.  Opinion  of  the  Court. 

above  the  burner-tip  into  contact  with  the  air,  thereby  burn- 
ing the  same,  substantially  as  described. 

"2.  The  process  of  burning  acetylene  gas,  which  consists  in 
projecting  toward  each  other  two  cylinders  of  acetylene  gas, 
in  surrounding  the  same  with  envelops  of  air  insuflBcient  to 
produce  combustion  of  all  the  gas,  and  in  finally  causing  the 
cyUnders  of  gas  to  impinge  upon  each  other  and  produce  a  flat 
flame,  substantially  as  described. 

"3.  The  combination  in  an  acetylene-burner  of  the  block  A 
having  the  minute  opening  C,  the  cylindrical  opening  E,  open- 
ing without  obstruction  to  the  atmosphere,  and  the  air- 
passages  a,  substantially  as  described.'' 

The  ground  upon  which  these  claims  are  maintained  is  the 
theory  indicated  in  one  of  the  passages  that  we  have  quoted, 
to  the  effect  that  the  gas  emerges  to  the  air  surrounded  by  a 
mainly  immixed  flow  of  air  carried  with  it  from  the  cylinder 
containing  the  holes  a,  o,  and  that  this  so  cools  the  outside  of 
the  flame  as  to  prevent  a  deposit  of  carbon.  If  this  theory 
is  not  true  and  if  all  there  is  to  the  Dolan  tip  or  burner  is  to 
provide  for  a  mixture  of  air  with  the  gas  in  the  cylinder  suf- 
ficient to  secure  complete  combustion  of  all  that  is  burned  near 
the  point  of  emergence,  but  insufficient  to  bum  all  the  gas,  the 
patent  must  fail.  For  this  latter  contrivance  was  well  known, 
and  if  the  shortness  of  the  Dolan  tip,  which  we  are  about  to 
mention,  has  no  other  effect  than  to  diminish  the  amoimt  of 
air  received  it  does  nothing  new.  Moreover,  unless  the  theory 
of  the  cooUng  envelop  so  dominates  the  specification  as  to  ex- 
plain what  is  doubtful  and  ambiguous  in  it,  the  claim  would 
not  be  for  what  now  is  said  to  be  the  characteristic  of  the 
Dolan  tip.  The  characteristic  of  the  Dolan  tip  now  is  said  to 
lie  in  the  fact  that  the  cylinder  is  very  short,  as,  it  is  said,  it 
must  be  for  it  to  be  true  that  the  shape  of  the  flame  would  not 
be  modified  by  cutting  it  off.  The  shortness  of  the  cyUnder  is 
supposed  to  prevent  the  mixing  of  the  air  and  to  produce  the 
result  desired. 

But  this  theory  of  cooling  not  only  is  disputed  in  the  testi- 


166  OCTOBER  TERM,  1909. 

OpinicHi  of  the  Court.  215  U.  S. 

mony  and  treated  as  speculative  and  highly  doubtful  by  the 
courts  below,  but  is  discredited  by  the  patent  itself.  The 
foiulh  claim  is  for  a  combination  m  an  acetylene  burner  of  two 
"air-mixing"  burners.  The  theory  was  not  that  upon  which 
Dolan  was  working,  or  in  which  he  even  now  believes.  He  was 
a  witness  in  the  case  and  testified  that  it  was  his  lawyer's  con- 
trivance, and  while  of  course  a  mechanical  device  may  be 
patentable  although  the  true  theory  of  it  is  not  understood, 
here  the  words  relied  upon  to  show  that  the  cylinder  was  to 
have  this  characteristic  shortness  also  were  the  insertion  of  the 
lawyer,  and  would  have  had  little  importance  apart  from  that 
newly  adopted  point  of  view.  We  should  regret  to  be  com- 
pelled to  decide  a  case  by  the  acceptance  or  rejection  of  a 
theoretic  explanation  upon  which  it  stiU  is  possible  that  au- 
thorities in  science  disagree.  But  the  uncertainty  indicated 
even  by  the  language  of  the  patent  is  important  in  determining 
whether  it  describes  a  new  invention  in  terms  suflSciently  pre- 
cise to  be  upheld. 

As  we  have  said,  the  only  passage  indicating,  even  by  in- 
direction, the  length  of  the  cylinder,  if  that  does,  is  the  para- 
graph stating  that  if  the  burner  were  cut  off  the  general  shape 
and  condition  of  the  flame  would  be  the  same,  which  is  thought 
to  reproduce  more  exactly  a  suggestion  in  Dolan's  specification 
as  to  a  funnel  shaped  flame,  said  by  him  to  result  from  the 
issue  of  gas  with  pressure  through  a  small  opening.  But  if  the 
relative  shortness  of  the  cylinder  had  been  imderstood  to  be  an 
essential  thing  the  patent  naturally  would  have  said  so.  It 
is  suggested  that  the  shortness  is  implied  by  the  word  tip  in  the 
patent,  but  the  patent  equally  is  said  to  relate  to  an  improve- 
ment in  burners,  and  the  length  of  burners  depends  on  the 
principle  involved.  In  fact,  all  that  directly  bears  upon  length 
is  the  statement,  which  we  have  not  yet  mentioned,  that  the 
contracted  opening  for  the  gas  into  the  cylinder  is  at  or  near 
the  longitudinal  center  of  the  block  constituting  the  tip.  As 
the  block  may  be  longer  or  shorter,  with  no  limits  fixed,  while 
the  cylinder  extends  from  the  longitudinal  center  to  the  outlet 


STEWARD  V.  AMERICAN  LAVA  CO.  167 

215  U.  8.  Opinion  of  the  Court. 

where  the  gas  is  burned,  obviously  the  length  of  the  cylinder, 
or  one-half  the  block,  may  be  greater  or  less,  so  far  as  we  are 
infonned  by  this  portion  of  the  patent.  And  when  this  is 
taken  with  the  language  as  to  mixing  in  the  fourth  claim; 
with  the  allowance  of  two  or  more  sets  of  air  holes,  one  above 
another;  with  the  imcertain  statement  of  the  theory  (*thc 
operation  seems  to  be,'  'the  result  seems  to  be';)  and  with 
the  statement  of  the  air  holes  alone  as  the  feature  that  pre- 
vents the  deposit,  it  seems  to  us  impossible  to  say  that  suffi- 
cient instructions  are  given  on  the  supposed  vital  point. 
Again,  no  proportions  are  indicated;  the  number,  size  and 
position  of  the  air  holes,  except  that  they  enter  the  cylinder 
above  the  gas,  are  left  at  large,  and  if  the  plaintiffs'  theory  is 
the  true  one,  the  public  are  told  little  more  than  to  try  ex- 
periments until  they  find  a  burner  that  works.  The  plaintiffs 
say  that  a  burner  with  a  distance  of  four-fifths  of  an  inch  or 
over  between  gas  and  discharge  orifice  is  a  Bunsen  burner,  and 
that  for  the  burner  to  be  effective  for  illuminating  purposes 
the  distance  should  be  only  a  few  millimeters.  But  if  experi- 
ment had  proved  the  contrary  we  cannot  doubt  that  they 
equally  would  have  claimed  the  successful  burner  as  the  one 
Dolan  had  contrived. 

If,  as  now  is  said,  a  rat-tail  flame  is  the  mark  of  Dolan's 
burner,  the  words  "funnel  shaped"  in  the  original  application 
were  not  apt  to  describe  it,  and  did  not  purport  to  indicate  a 
test.  They  were  used  merely  to  show  how  the  perfect  com- 
bustion was  achieved  which  is  the  declared  object  throughout. 
The  cause  assigned  was  not  peculiar  to  Dolan's  tip.  The 
amendment,  in  the  passage  as  to  the  unaltered  shape  of  the 
flame  when  the  burner  is  cut  off,  goes  on  to  say  that '  of  course ' 
the  shape,  though  cyUndrical  as  it  issues  from  the  round  hole, 
increases  in  diameter,  'approximating  in  some  degree  to  the 
form  of  an  inverted  cone.'  This  of  itself  almost  excludes  the 
notion  that  the  rat-tail  shape  is  the  test,  and  no  reader  would 
draw  that  or  any  similar  notion  from  the  specification  as  a 
whole. 


168  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  T7.  S. 

We  appreciate  the  difficulties  that  would  beset  an  attempt 
to  make  the  directions  more  precise,  but  it  certainly  was  pos- 
Hible  to  indicate  with  greater  clearness  the  specific  object  to  be 
attained,  and  that  in  any  ordinary  burner  the  tip  must  be 
very  short.  Vacillation  in  theory  led  to  uncertainty  of  phrase. 
If,  however,  we  are  wrong,  then  it  appears  to  us  plain  that 
Dolan's  attorney  introduced  not  merely  the  theory  but  the 
mode  of  applying  it,  for  the  first  time,  in  the  amended  specifi- 
cation, or,  in  other  words,  then  for  the  first  time  pointed  to  an 
invention,  the  essence  of  which  was  to  have  so  short  a  chamber 
or  cylinder  as  to  prevent  the  mixing  of  the  air  taken  into  it 
and  to  emit  the  current  of  gas  surrounded  by  the  greater  part 
of  such  air  as  an  envelope  or  film.  Of  course,  Dolan  desired  to 
produce  the  result  which  the  patented  article  is  said  to  pro- 
duce, but  beyond  that  desire  his  specification  did  not  give  a 
hint  of  the  means  by  which  it  now  is  said  to  be  achieved.  It 
spoke,  it  is  true,  as  we  have  said,  of  producing  a  hollow-shaped 
fuimel  flame  by  reason  of  the  gas  being  forced  through  con- 
tracted openings  at  very  great  pressure.  But  this  did  not  dis- 
close the  invention  and  was  dropped  in  the  amendment.  He 
made  no  claim  for  a  process  and  disclosed  no  invention  of  a 
dovico.  This  being  so,  the  amendment  required  an  oath  that 
Dolan  might  have  found  it  difficult  to  take,  and  for  want  of  it 
the  patent  is  void.  Rev.  Stat,,  §  4892.  Railuxiy  Co.  v.  Sayles, 
97  W  Ss  554.  Eoifleton  Manufacturing  Co.  v.  West,  Bradley  & 
Carty  Manufacturing  Co.,  Ill  U.  S.  490,  Kennedy  v.  HazdUm^ 
12S  l\  S.  iU>7.  De  La  Vergfie  Refrigerating  Machine  Co.  v. 
Frx^ihtrstonc.  147  U.  S.  209,  229. 

The  j>atont  was  held  void  below  on  the  further  ground  that  it 
had  Ixvu  anticijvitoii.  AVe  turn  to  this  last  because  the  ques- 
tii^\  iii  iHMUplioatod  with  the  theory  that  we  have  mentioned. 
If  tho  IV^lan  t>atont  had  unrw^^rwxUy  committed  itself  to  the 
lunivm  i>f  a  ovx>ling  enveKnv  with  a  contrivance  made  very 
s^hv^rt  fv>r  the  purpo^  of  ^vurinc  that  n^?uh,  the  aigument  in 
dofo:v<>(^  \>t  it  would  be  tlv^t  the  K^ditu:  earlier  patents  pn>- 
\\\\l^\i  uiva  tht^  oin\x:>::o  th^vrv*  v^  :v,;\turv  and  admitted*  if 


STEWARD  V,  AMERICAN  LAVA  CO.  169 

215  U.  S.  Opinion  of  the  Court. 

they  did  not  contemplate,  a  longer  tube,  however  similar 
otherwise  they  might  be.  They,  at  least,  exhibit  the  state  of 
the  art  at  the  date  of  the  supposed  invention,  and  show  within 
what  narrow  and  precise  limits  Dolan  had  to  move  if  he  was 
to  produce  an3rthing  new.  So  much  may  be  said  to  be  un- 
disputed, and  we  have  mentioned  some  of  the  facts  that  can- 
not be  denied.  But  on  the  view  that  we  have  taken  of  Dolan^s 
specification,  they  anticipate  all  that  he  can  be  said  to  have 
disclosed  to  the  public.  We  think  it  unnecessary  to  go  over 
much  of  the  disputed  ground  and  shall  mention  but  two  of  the 
patents  put  in  evidence.  The  most  important  of  these  is  one 
issued  in  France  to  Bullier.  This  also  was  for  a  tip  (bee)  for 
acetylene  gas.  This  tip  was  structurally  similar  to  Dolan's, 
admitting  the  gas  through  a  very  small  orifice  and  having  the 
same  slanting  air  passages  entering  the  cylinder  above  and 
around  the  gas,  and,  in  one  drawing  at  least,  entering  it  very 
near  its  upper  end.  Bullier  definitely  adopted  the  theory  of 
mixture  and  stated  the  proportions — iO  per  cent  of  air  to  60 
per  cent  of  gas — and,  after  stating  his  preference  for  a  duplex 
burner,  he  added  that  in  this  manner  the  illuminating  portion 
of  the  flames  is  relatively  far  from  the  orifice  by  reason  of  the 
air  introduced,  and  that  for  the  same  reason  the  combustion  of 
the  carbon  is  complete  between  the  orifice  and  the  point  where 
the  flame  flattens,  the  flame  as  it  issues  from  the  orifices  being 
blue  and  not  illuminating.  In  this  way,  he  said,  he  avoided 
any  deposit  of  carbon.  The  degree  of  mixture  is  affected  by 
the  length  of  the  cylinder  or  tube,  and  when  mixture  is  desired 
naturally  a  longer  tube  would  be  employed  than  when  it  is  to 
be  prevented.  The  drawings,  which  are  admitted  to  be  only 
diagrams,  indicate  a  longer  cylinder  than  Dolan's,  and  al- 
though Bullier  does  not  state  the  length  it  will  be  perceived 
without  more  that  if  the  plaintiffs'  theory  and  construction  of 
their  patent  were  adopted  the  distinction  insisted  upon  by 
them  might  be  held  to  exist.  Otherwise  the  anticipation  is 
complete.  It  is  significant  that  some  of  the  plaintiffs  manu- 
facture under  a  Bullier  license  in  Franco. 


170  OCTOBER  TERM,  1909. 

Syllabus.  216  U.  8. 

The  other  patent  to  be  mentioned  is  another  French  one,  to 
Letang.  He  also  states,  as  means  to  prevent  clogging,  the  re- 
moval of  the  outlet  opening  sufficiently  far  from  the  point  of 
ignition  and  the  cooling  of  the  burner  by  a  current  of  air.  This 
current  was  produced  by  separate  plates  above  the  gas  nozzle 
so  arranged  that  a  certain  quantity  of  air  would  be  carried 
along  by  the  gas.  It  would  seem  from  the  diagram  that  the 
distance  intended  to  exist  between  the  nozzle  and  the  flame 
was  very  short.  We  do  not  dwell  upon  the  earlier  patents  in 
more  detail,  because  we  believe  that  we  have  said  enough  to 
show  that  the  plaintiffs '  cannot  be  sustained. 

Decrees  affirmed. 

Mr.  Justice  McKenna  dissents. 


*•» 


LOUISIANA  ex  rel.  HUBERT,  RECEIVER,  v.  MAYOR 
AND  COUNCIL  OF  THE  CITY  OF  NEW  ORLEANS. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  LOUISIANA. 
No.  11.    Argued  November  1,  2,  1909.— Decided  November  29,  1909. 

This  court  has  not  jurisdiction  to  review  the  judgment  of  a  state  court 
based  on  the  contract  clause  of  the  Constitution  unless  the  alleged 
impairment  was  by  subsequent  legislation  which  has  been  upheld  or 
given  effect  by  the  judgment  sought  to  be  reviewed.  Bacon  v.  Texas, 
163  U.  S.  207. 

A  power  to  tax  to  fulfill  contract  obligations  continues  until  the  obliga- 
tion is  discharged. 

The  power  of  taxation  conferred  by  law  enters  into  the  obligation  of  a 
contract,  and  subsequent  legislation  withdrawing  or  lessening  such 
power  and  which  leaves  the  creditors  without  adequate  means  of 
satisfaction  impairs  the  obligation  of  their  contracts. 

Where  a  municipality  has  power  to  contract  and  tax  to  meet  the  obli- 
gation, the  proper  remedy  of  the  creditor  is  by  mandamus  to  the 
authorities  of  the  municipality  either  to  pay  over  taxes  already  c6l- 
lected  for  their  debt  or  to  levy  and  collect  therefor. 


HUBERT  V.  NEW  ORLEANS.  171 

215  U.  S.  Opinion  of  the  Court. 

The  legifllatvire  of  a  State  cannot  take  away  rights  created  by  fonner 
legislation  for  the  security  of  debts  owing  by  a  municipality  of  the 
State  or  postpone  indefinitely  the  payment  of  lawful  claims  until 
such  time  as  the  municipality  is  ready  to  pay  them. 

Act  of  November  5,  of  1870  of  State  of  Louisiana  providing  for  registra- 
tion and  collection  of  judgments  against  the  city  of  New  Orleans  so 
far  a^  it  delays  the  payment,  or  collection  of  taxes  for  the  payment, 
of  contract  claims  existing  before  the  passage-  of  the  act  is  void  as 
impairing  the  obligation  of  contracts  within  the  meaning  of  the 
Federal  Constitution. 

119  Louisiana  623,  reversed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Charles  Louqve,  and  Mr.  J.  D.  Rouse,  with  whom  Mr. 
William  Grant  were  on  the  brief,  for  plaintiff  in  error. 

Mr.  Frank  B.  Thomas  for  defendants  in  error. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

This  case  presents  the  question  of  the  right  of  the  relator, 
as  receiver  of  the  Board  of  Metropolitan  Police  of  the  Metro- 
politan Police  District,  consisting  of  the  parishes  of  Orleans, 
Jefferson  and  St.  Bernard  and  including  the  city  of  New 
Orleans,  in  the  State  of  Louisiana,  to  compel  an  assessment, 
by  mandamus,  of  taxes  to  pay  a  certain  judgment  recovered 
by  the  relator  in  his  capacity  as  receiver,  against  the  city  of 
New  Orleans,  in  the  sum  of  $123,475.57,  with  interest  from 
April  4,  1904. 

On  September  14,  1868,  the  general  assembly  of  the  State 
of  Louisiana  passed  an  act  establishing  a  Metropolitan  Police 
District,  constituting  the  same  of  the  parishes  of  Orleans,  Jef- 
ferson and  St.  Bernard  (including  the  city  of  New  Orleans). 
Section  29  of  that  act  provides : 

"Sec.  29.  Be  it  further  enacted,  etc..  That  the  common 
comicils  of  the  cities  of  New  Orleans,  Jefferson  City  and 
CarroUton,  and  the  police  juries  of  the  towns  of  Algiers  and 
Gretna,  and  of  the  parishes  of  Orleans,  Jefferson  and  St.  Ber- 


I 


172  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

nard  are  hereby  respectively  empowered  and  directed  annu- 
ally to  order  and  caused  to  be  raised  and  collected  by  the  tax 
upon  the  estates,  real  and  personal,  subject  to  taxation  accord- 
ing to  law,  within  the  said  cities  and  towns,  the  sums  of  money 
as  aforesaid,  annually  estimated  and  apportioned  as  the  share 
of  such  cities  or  parishes  of  the  said  total  expenses  of  the  Met- 
ropolitan Police  District." 

This  act  was  supplemented  by  various  statutes,  and  its 
provisions  were  in  force  until  March  31,  1877,  when  it  and 
various  other  acts  relating  to  the  Metropolitan  Police  Dis- 
trict were  repealed,  and  the  city  of  New  Orleans  was  author- 
ized and  empowered,  through  the  mayor  and  board  of  admin- 
istrators, to  establish,  organize  and  maintain  a  proper  and 
sufficient  police  force. 

On  January  22,  1900,  Louis  A.  Hubert  was  duly  quaUfied 
as  receiver  of  the  Board  of  Metropolitan  Police.  On  April  6, 
1904,  Hubert,  as  such  receiver,  began  an  action  in  the  Civil 
District  Court  of  the  parish  of  Orleans,  in  which  he  averred 
that  the  city  was  indebted  to  him,  as  such  receiver,  in  the 
sum  of  $411,884.89,  with  interest  from  April  3,  1880,  and 
averred  that,  for  various  years,  from  1869  to  1877  inclusive, 
the  city  of  New  Orleans  had  received  and  collected  taxes  for 
the  maintenance  of  the  Board  of  MetropoUtan  Police  and  the 
payment  of  its  expenses,  which  amounts,  although  collected 
by  the  city,  were  never  paid  over  to  the  Board  of  Metro- 
politan Police  or  its  representatives.  The  petition  averred 
that  the  Board  of  MetropoUtan  Police  owed  large  amounts  of 
money;  that  the  whole  of  the  indebtedness  thus  due  from  the 
city  was  necessary  to  pay  the  same.  Upon  issue  made  and 
trial  had  a  judgment  was  rendered  in  favor  of  the  receiver  on 
May  18,  1905.  The  record  of  this  judgment  was  made  part 
of  the  record  herein,  and  it  appears  therein  that  the  Civil 
District  Court  took  an  accoimt  of  the  taxes  collected  for  the 
years  1869  to  1877  inclusive,  and  not  paid  over  for  accoimt 
of  the  Board  of  Metropolitan  Police,  and  found  the  same  to 
be  the  sum  of  $136,082.62,  for  which  judgment  was  rendered 


HUBERT  V.  NEW  ORLEANS.  173 

215  U.  S.  Opinion  of  the  Court. 

against  the  city  of  New  Orleans.  This  judgment  was  modified 
by  the  Supreme  Couii;  of'  Louisiana  on  March  12,  1906,  and 
aflSrmed  after  deducting  the  sum  of  $12,607.05,  leaving  a 
judgment  in  force  for  $123,475.57,  with  interest.  Hubert  v. 
City  of  New  Orleans,  116  Louisiana,  507. 

On  April  23,  1906,  a  petition  for  mandamus  was  filed,  in  the 
present  case,  in  the  Civil  District  Court  for  the  parish  of  Or- 
leans. Li  that  case  the  relator  set  up  the  recovery  of  the 
judgment  in  the  state  court;  that  under  Act  No.  5  of  1870 
(to  be  noticed  hereafter)  no  writ  oi  fieri  facias  could  be  issued; 
that  the  city  had  no  money  or  property  liable  to  seizure,  if 
such  a  writ  could  be  issued;  that  the  judgment  had  been  regis- 
tered under  said  act  in  the  office  of  the  city  comptroller  on 
March  26,  1906;  that  the  basis  upon  which  the  said  judgment 
waa  rendered  was  a  contractual  and  statutory  obUgation  im- 
posed upon  the  city  of  New  Orleans  to  levy,  collect  and  pay 
to  the  Board  of  Metropolitan  Police  the  sums  apportioned  to 
it  imder  the  act  of  1868  creating  the  board  and  the  acts  amend- 
atory thereto.  The  petition  averred  that  the  maximum  rate 
i  of  taxation  for  the  years  1869-1877  inclusive  had  not  been 

;  levied,  and  prayed  a  writ  of  mandamus  requiring  the  city  of 

New  Orleans,  through  its  mayor  and  council,  to  levy  and  pay 
over  to  the  relator  as  receiver  a  tax  of  one  mill  on  property 
within  the  city  of  New  Orleans,  or  so  much  thereof  as  might 
be  necessary  to  satisfy  the  judgment.  The  city  appeared  and 
answered,  and  claimed  the  benefit  of  Act  No.  5  of  the  extra 
session  of  1870,  and  that  under  §  29  of  the  act  of  1868,  above 
set  forth,  the  city  had  levied  the  tax  apportioned  to  the  Board 
of  Metropolitan  PoUce,  and  that  the  city's  power  of  taxation 
in  the  premises  had  been  fully  exercised  and  exhausted. 

On  November  12,  1906,  the  Civil  District  Court  rendered 
a  judgment  dismissing  the  relator's  petition  for  mandamus. 
Upon  appeal  the  Supreme  Court  of  Louisiana  affirmed  this 
judgment.  State  v.  Mayor  &c,  of  New  Orleans,  119  Louisiana, 
fi23.  The  present  writ  of  error  brings  this  judgment  here  for 
review. 


: 


174  OCTOBER  TERM,  1909 

OpiiiiOQ  of  the  Court.  215  U.  8. 

In  the  opinion  of  the  Supreme  Court  of  Louisiana  it  appears 
that  the  hssis  of  the  judgment  upon  which  the  relator  sued 
was  held  not  to  be  contractual  in  its  nature,  and,  further, 
that  the  State,  having  abolished  the  Metropolitan  Police 
Board,  the  only  standing  of  the  relator  for  the  purposes  of 
this  suit  was  as  the  representative  of  third  persons  who  may 
have  made  contracts  with  the  board  which  were  dependent 
upon  taxes  receivable  from  the  city  for  their  fulfillment.  The 
learned  court  then  pointed  out  an  apparent  inconsistency 
between  the  petition  for  mandamus  in  this  case  and  the  peti- 
tion on  which  the  original  judgment  was  awarded,  and  said, 
on  p.  630: 

"In  the  brief  presented  on  behalf  of  relator,  for  the  pur- 
poses of  the  present  application,  his  counsel  say : '  This  is  not 
a  proceeding  to  compel  the  city  of  New  Orleans  to  levy  a 
special  police  tax.  The  city  has  actually  levied  and  collected 
the  tax.  The  tax  levy  having  been  made,  in  compliance  with 
the  statute,  and  having  been  collected  by  the  city,  gave  rise 
to  a  cause  of  action  in  favor  of  the  receiver  to  enforce  its  pay- 
ment to  the  Board  of  Metropolitan  Police.  This  cause  of  ac- 
tion, therefore,  could  not  have  arisen  until  the  city  had  levied 
and  collected  the  tax  and  refused  to  pay  over  the  proceeds.' 

"Assuming  that  the  position  that  the  relator  now  wishes 
to  occupy  is  correctly  stated  in  the  foregoing  excerpt,  we 
take  it  to  be  conceded  that  the  city  has  levied  and  collected 
all  the  taxes  authorized  or  required  by  the  metropoKtan  po- 
lice legislation ;  and,  fiuther  assuming  that  the  relator  repre- 
sents the  holders  of  the  indebtedness  (of  the  police  board) 
referred  to  in  the  petition  uj)on  which  he  obtained  his  judg- 
ment (though  it  is  not  so  alleged  in  the  application  now  being 
considered),  the  question  still  remains:  Does  he  disclose  and 
make  out  a  case  which  entitles  him  to  a  writ  of  mandamus 
to  compel  the  city  to  levy  and  collect  an  additional  tax  in 
order  to  make  good  its  failure  to  pay  over  the  tax  already 
levied  and  collected?  *' 

The  court,  therefore,  treated  the  petition  for  mandamus 


HUBERT  V,  NEW  ORLEANS.  175 

215  U.  S.  Opinion  of  the  Court. 

as  one  based  upon  a  judgment  to  recover  taxes  which  the  city 
had  collected  and  not  paid  over.  Considering  the  case  in  this 
aspect,  the  learned  court  held  that  the  power  to  levy  taxes 
for  the  various  years  for  Metropolitan  Police  District  pur- 
poses had  been  exhausted,  and  that  there  was  no  power  to 
relevy  such  tax;  and,  further,  that  as  to  liabilities  incurred 
after  the  passage  of  Act  No.  5  of  1870,  that  act  was  a  defense 
to  the  action;  and  the  court  reached  the  conclusion  that  the 
application  for  mandamus  must  fail,  as  it  was  an  attempt  to 
require  the  city  to  exert  powers  of  taxation  already  exhausted, 
and  which  no  longer  existed. 

In  order  to  review  in  this  court  the  judgment  of  a  state 
court  because  of  the  provision  of  the  Federal  Constitution 
against  state  legislation  impairing  the  obligation  of  a  con- 
tract, the  impairment  must  be  by  some  subsequent  legisla- 
tion of  the  State  which  has  been  upheld  or  given  effect  in  the 
judgment  of  the  state  court  sought  to  be  reviewed.  Bojcon  v. 
Texas,  163  U.  S.  207.  While  this  is  true,  this  court  is  not  lim- 
ited to  the  consideration  of  the  mere  language  of  the  opinion, 
but  will  examine  the  substance  and  effect  of  the  decision. 
McCuOaugh  v.  Virginia,  172  U.  S.  102,  116. 

It  appears  from  the  documents  attached  to  and  made  part 
of  the  record  that  the  indebtedness  represented  by  the  re- 
ceiver in  this  case  was  for  outstanding  debts  of  the  Metropoli- 
tan Police  Board  in  the  years  1869-1877  inclusive,  a  congider- 
able  part  of  it  being  for  salaries  of  policemen,  and  the  Supreme 
Court  of  Louisiana  has  held  that  the  taxes  of  several  years, 
from  1869  to  1876  inclusive,  constitute  one  fimd  out  of  which 
the  warrants  of  the  defunct  Metropolitan  Police  Board  are 
payable.  Brittin  v.  The  City  of  New  Orleans,  106  Louisiana, 
469. 

A  number  of  decisions  in  this  court  have  settled  the  law  to 
be  that  where  a  municipal  corporation  is  authorized  to  con- 
tract, and  to  exercise  the  power  of  local  taxation  to  meet  its 
contractual  engagements,  this  power  must  continue  until  the 
contracts  are  satisfied,  and  that  it  is  an  impairment  of  an  ob- 


176  OCTOBER  TERM/  1909. 

Opinion  of  the  Court.  215  XT.  8. 

ligation  of  the  contract  to  destroy  or  lessen  the  means  by 
which  it  can  be  enforced.  In  the  case  of  Wolff  v.  New  Orleans^ 
103  U.  S.  358,  the  subject  was  given  full  consideration,  and 
the  doctrine  thus  summarized  by  Mr.  Justice  Field,  speaking 
for  the  court  (p.  365) : 

"  It  is  true  that  the  power  of  taxation  belongs  exclusively 
to  the  legislative  department,  and  that  the  legislature  may 
at  any  time  restrict  or  revoke  at  its  pleasure  any  of  the  powers 
of  a  municipal  corporation,  including,  among  others,  that  of 
taxation,  subject,  however,  to  this  qualification,  which  at- 
tends all  state  legislation,  that  its  action  in  that  respect  shall 
not  conflict  with  the  prohibitions  of  the  Constitution  of  the 
United  States,  and,  among  other  things,  shall  not  operate 
directly  upon  contracts  of  the  corporation,  so  as  to  impair 
their  obligation  by  abrogating  or  lessening  the  means  of  their 
enforcement.  Legislation  producing  this  latter  result,  not 
indirectly  as  a  consecjuence  of  legitimate  measures  taken,  as 
will  sometimes  happen,  but  directly  by  operating  upon  those 
means,  is  prohibited  by  the  Constitution,  and  must  be  disre- 
garded— ^treated  as  if  never  enacted — by  all  courts  recogniz- 
ing the  Constitution  as  the  paramount  law  of  the  land.  This 
doctrine  has  been  repeatedly  asserted  by  this  court  when 
attempts  have  been  made  to  limit  the  power  of  taxation  of 
a  municipal  body,  upon  the  faith  of  which  contracts  have 
been  made,  and  by  means  of  which  alone  they  could  be  per- 
formed. .  .  (p.  367).  The  prohibition  of  the  Constitution 
against  the  passage  of  laws  impairing  the  obligation  of  con- 
tracts applies  to  the  contracts  of  the  State,  and  to  those  of  its 
agents  acting  under  its  authority,  as  well  as  to  contracts  be- 
tween individuals.  And  that  obligation  is  impaired,  in  the 
sense  of  the  Constitution,  when  the  means  by  which  a  con- 
tract at  the  time  of  its  execution  could  be  enforced,  that  is, 
by  which  the  parties  could  be  obliged  to  perform  it,  are  ren- 
dered less  efficacious  by  legislation  operating  directly  upon 
those  means." 

In  RaRs  County  Court  v.  United  States^  105  U.  S.  733,  it  was 


HUBERT  r.  NEW  ORLEANS.  177 

215  U.  S.  Opinion  of  the  Court. 

held  that,  after  a  debt  was  created  uj)on  certain  bonds,  laws 
passed  depriving  the  county  court  of  the  power  to  levy  the 
tax  which  it  possessed  when  the  bonds  were  issued  were  in- 
valid. In  that  case  the  suit  was  brought  upon  certain  coupons, 
and  it  was  held  that  the  coupons  were  merged  in  the  judg- 
ment, but  nevertheless  carried  with  them  into  the  judgment 
all  the  remedies  which  in  law  formed  a  part  of  their  contract 
obligation,  and  that  those  remedies  might  still  be  enforced, 
notwithstanding  the  changes  in  the  form  of  the  debt. 

In  dealing  with  the  feature  important  to  be  considered  in 
this  case  the  court,  speaking  by  Mr.  Chief  Justice  Waite,  said 
(p.  738) : 

"  It  follows  from  this  that  all  laws  of  the  State  which  have 
been  passed  since  the  bonds  m  question  were  issued,  purport- 
ing to  take  away  from  the  county  courts  the  power  to  levy 
taxes  necessary  to  meet  the  payments,  are  invalid,  and  that, 
under  the  well-settled  rule  of  decision  in  this  coiut,  the  Cir- 
cuit Coiut  had  authority  by  mandamus  to  require  the  county 
court  to  do  all  the  law,  when  the  bonds  were  issued,  required 
it  to  do  to  raise  the  means  to  pay  the  judgment,  or  something 
substantially  equivalent.  The  fact  that  money  has  once  been 
raised  by  taxation  to  meet  the  payment,  which  has  been  lost, 
is  no  defense  to  this  suit.  The  claim  of  the  bondholders  con- 
tinues until  payment  is  actually  made  to  them.  If  the  funds 
are  lost  after  collection,  and  before  they  are  paid  over,  the 
loss  falls  on  the  county  and  not  the  creditors.  The  writ  as 
issued  was  properly  in  the  alternative  to  pay  from  the  money 
already  raised,  or  levy  a  tax  to  raise  more.  It  will  be  time 
enough  to  consider  whether  the  command  of  the  writ  that  the 
court  caiise  the  tax  to  be  collected  is  in  excess  of  the  require- 
ments of  the  law,  when  the  justices  of  the  court  are  called  on 
to  show  why  they  have  not  obeyed  the  order." 

We  think  the  doctrine  of  the  Ralls  County  case  when  ap- 
plied to  the  facts  in  the  case  at  bar  is  decisive  of  this  feature 
of  it.  The  city  levied  and  afterwards  collected  taxes  for  the 
benefit  of  the  Metropolitan  Police  Board.  The  Police  Board 
VOL.  ccxv — 12 


178  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

had  issued  its  outstanding  warrants  for  salaries,  etc.,  upon  the 
faith  of  the  exercise  of  the  taxing  power  for  their  payment. 
The  contract  creditors  of  the  Police  Board  were  entitled  to 
rely  upon  the  benefit  of  the  laws  imposing  taxation  to  make 
their  obligations  effectual.  They  could  not,  constitutionally, 
be  deprived  of  such  benefit.  While  it  is  true  that  the  Police 
Board  made  the  contracts,  the  only  means  of  keeping  them 
was  through  the  exercise  of  the  power  of  taxation  conferred 
by  law  upon  the  city.  The  city  exerted  its  power,  as  required 
by  law,  levied  and  collected  the  taxes,  but  appKed  them  to 
other  purposes,  and  has  failed  to  turn  them  over  upon  demand. 
We  think  the  power  to  levy  these  taxes  still  exists.  As  to  the 
creditor,  deprived  thereof  by  the  action  of  the  city,  it  is  as 
though  such  power  had  never  been  exercised.  The  city  stiD 
has  the  power  to  levy  these  taxes  for  the  benefit  of  the  per- 
sons for  whom  they  were  intended,  and  who  had  a  contract 
right  to  the  exertion  of  the  remedies  for  the  satisfaction  of 
their  claims  by  the  levy  and  collection  of  taxes  existing  when 
their  debts  accrued,  which  right  could  not  be  taken  away 
from  them  by  subsequent  legislation.  The  power  of  taxation 
conferred  by  law  entered  into  the  obligation  of  the  contracts, 
and  any  subsequent  legislation  withdrawing  or  lessening  such 
power,  leaving  the  creditors  without  adequate  means  of  sat- 
isfaction, impaired  the  obligation  of  their  contracts  within  the 
meaning  of  the  Constitution.  Memphis  v.  United  States,  97 
U.  S.  293;  Van  Hoffman  v.  City  of  Quincy,  4  Wall.  535;  iSei- 
bert  V.  Leads,  122  U.  S.  284;  Mobile  v.  Watson,  116  U.  S.  289; 
Scotland  County  Court  v.  HiU,  140  U.  S.  41. 

We  come  now  to  the  question:  Can  Act  No.  5  of  1870  be 
constitutionally  applied  so  as  to  preclude  the  remedy  sought 
in  behalf  of  the  receiver  in  this  case?  This  act  has  been  at 
least  twice  before  this  court.  In  the  case  of  Louisiana  v.  New 
Orleans,  102  U.  S.  203,  205,  the  provisions  of  the  act  were 
summarized  by  Mr  Justice  Field,  speaking  for  the  court,  as 
follows :    . 

"That  act  divests  the  courts  of  the  State  of  authority  to 


HUBERT  V,  NEW  ORLEANS.  179 

215  U.  S.  Opinion  of  the  Court. 

allow  any  summary  process  or  mandamus  against  the  officers 
of  the  city  of  New  Orleans  to  compel  the  issue  and  delivery 
of  any  order  or  warrant  for  the  payment  of  money,  or  to  en- 
force the  payment  of  money  claimed  to  be  due  from  it  to  any 
person  or  corporation;  and  requires  proceedings  for  the  re- 
covery of  money  claimed  to  be  owing  by  the  city  to  be  con- 
ducted in  the  ordinary  form  of  action  against  the  corporation, 
and  not  against  any  department,  branch,  or  officer  thereof. 
The  act  also  provides  that  no  writ  of  execution  or  fieri  facias 
shall  issue  against  the  city,  but  that  a  final  judgment  against 
it,  which  has  become  executory,  shall  have  the  effect  of  fix- 
ing the  amount  of  the  plaintiff's  demand,  and  that  he  may 
cause  a  certified  copy  of  it,  with  his  petition  and  the  defend- 
ant's answer  and  the  clerk's  certificate  that  it  has  become 
executory,  to  be  filed  in  the  office  of  the  controller,  and  that 
thereupon  it  shall  be  the  duty  of  the  controller  or  auditing 
officer  to  cause  the  same  to  be  registered,  and  to  issue  a  war- 
rant upon  the  treasurer  or  disbursing  officer  of  the  corpora- 
tion for  the  amount  due  thereon,  without  any  specific  appro- 
priation therefor,  provided  there  be  sufficient  money  in  the 
treasury  specially  designated  and  set  apart  for  that  purpose 
in  the  annual  budget  or  detailed  statement  of  items  of  liability 
and  expenditures  pursuant  to  the  existing  or  a  subsequent  law. 

"The  act  further  provides  that  in  case  the  amount  of 
money  designated  in  the  annual  budget  for  the  payment  of 
judgments  against  the  city  of  New  Orleans  shall  have  been 
exhausted,  the  common  council  shall  have  power,  if  they 
deem  it  proper,  to  appropriate  from  the  money  set  apart  in 
the  budget  or  annual  estimate  for  contingent  expenses,  a 
sufficient  sum  to  pay  the  same;  but  if  no  such  appropriation 
be  made,  then  that  all  judgments  shall  be  paid  in  the  order 
in  which  they  shall  be  filed  and  registered  in  the  office  of  the 
controller  of  the  city  from  the  first  money  next  annually  set 
apart  for  that  purpose." 

In  that  case  it  was  held  that,  in  so  far  as  the  act  requires 
registration  of  a  judgment,  it  did  not  impair  existing  remedies 


180  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

for  its  collection,  and  must  be  complied  with,  Mr.  Justice 
Field  saying  (p.  206) : 

''The  obUgation  of  a  contract,  in  the  constitutional  sense, 
is  the  means  provided  by  law  by  which  it  can  be  enforced, — 
by  which  the  parties  can  be  obliged  to  perform  it.  Whatever 
legislation  lessens  the  efficacy  of  these  means  impairs  the  ob- 
Ugation. If  it  tend  to  postpone  or  retard  the  enforcement  of 
the  contract,  the  obUgation  of  the  latter  is  to  that  extent 
weakened.  The  Latin  proverb.  Qui  cUo  dot  bis  dot — ,he  who 
gives  quickly  gives  twice, — has  its  counterpart  in  a  maxim 
equally  sound — jQui  serius  solvit,  minus  solvit, — he  who  pays 
too  late  pays  less.  Any  authorization  of  the  postponement 
of  payment,  or  of  means  by  which  such  postponement  may 
be  effected,  is  in  conflict  with  the  constitutional  inhibition. 
If,  therefore,  we  could  see  that  such  would  be  the  effect  of  the 
provision  of  the  act  of  the  State,  No.  5  of  1870,  requiring  judg- 
ments to  be  registered  with  the  controller  before  they  are 
paid,  we  should  not  hesitate  to  declare  the  provision  to  be 
invaUd.  But  we  are  not  able  to  see  anything  in  the  require- 
ment which  impedes  the  coUection  of  the  relator's  judgments, 
or  prevents  his  resort  to  other  remedies,  if  their  payment  be 
not  obtained.  The  registry  is  a  convenient  means  of  inform- 
ing the  city  authorities  of  the  extent  of  the  judgments,  and 
that  they  have  become  executory,  to  the  end  that  proper  steps 
may  be  taken  for  their  payment.  It  does  not  impair  existing 
remedies." 

The  act  was  again  before  this  court  in  the  case  of  Wolff  v. 
New  OrkanSj  103  U.  S.  358.  In  that  case  the  act  was  fuUy 
analyzed,  and  it  was  pointed  out  that  the  payment  of  judg- 
ments thereunder  was  extremely  uncertain  and  depended 
entirely  upon  the  discretion  of  the  council,  after  providing 
for  other  municipal  purposes  and  expenses,  and  was  in  direct 
violation  of  powers  of  taxation  which  existed  at  the  time  the 
debt  sued  for  in  that  case  was  created,  and  could  not  be  con- 
stitutionally enforced  as  against  such  claim. 

Applying  the  principles  thus  announced  to  the  case  at  bar, 


HUBERT  V.  NEW  ORLEANS.  181 

215  U.  8.  Opinion  of  the  Court. 

we  think  Act  No.  5  of  1870,  postponing  indefinitely  the  pay- 
ment of  relator's  judgment,  if  given  effect,  would  deprive  the 
receiver,  as  the  representative  of  the  interested  creditors,  of 
the  benefit  of  the  right  of  taxation  for  the  payment  of  their 
claims  which  existed  before  the  passage  of  the  act  of  1870. 
By  §  29  of  the  act  of  September  14,  1868,  above  quoted,  the 
common  council  of  the  city  of  New  Orleans  and  others  were 
empowered  and  directed  annually  to  order  and  caused  to  be 
raised  and  collected  by  a  tax  upon  the  estates,  real  and  per- 
sonal, subject  to  taxation  within  said  city,  the  sums  of  money 
annually  estimated  and  apportioned  as  the  share  of  such  city 
for  the  total  expense  of  the  MetropoKtan  Police  District.  This 
act  was  followed  by  other  supplementary  and  amendatory 
acts  to  make  the  purpose  more  effectual,  and  was  not  repealed 
until  the  act  of  March  31,  1877,  which  abolished  the  Metro- 
politan Police  Board.  This  repeal  could  not  take  away  the 
right  of  the  creditors  of  the  Metropolitan  Police  Board  to 
have  taxation  for  their  benefit.  Nor  could  the  act  of  1870 
constitutionally  take  away  the  rights  created  by  former  legis- 
lation for  the  security  of  their  debts  and  postpone  indefinitely 
the  pa3anent  of  their  claims  until  such  time  as  the  city  was 
ready  and  willing  to  pay  them. 

We  are  of  opinion  that  the  writ  of  mandamus  should  have 
been  awarded  in  favor  of  the  relator,  requiring  the  city  to  pay 
over  the  taxes  for  which  the  judgment  was  rendered,  or  to 
levy  and  collect  a  tax  therefor  for  the  benefit  of  the  relator  as 
receiver.  The  judgment  of  the  Supreme  Court  of  Louisiana 
is  reversed  and  the  cause  remanded  to  that  court  for  further 
proceedings  not  inconsistent  with  this  opinion. 

Reversed. 


182  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  216  U.  S. 


CALIGA  V.  INTER  OCEAN  NEWSPAPER  COMPANY. 

ERROR  TO  THE  UNITED  STATES  CIRCUIT  COURT  OF  APPEALS 

FOR  THE  SEVENTH  CIRCUIT. 

No.  22.     Argued  November  5,  1909.—Decided  November  29,  1909. 

Statutory  copyright  is  not  to  be  confounded  with  the  exclusive  prop- 
erty of  the  author  in  his  manuscript  at  common  law. 

In  enacting  the  copyright  statute  Congress  did  not  sanction  an  exist- 
ing right  but  created  a  new  one  dependent  on  compliance  with  the 
statute. 

Under  existing  copyright  law  of  the  United  States  there  is  no  provision 
for  filing  amendments  to  the  first  application;  and,  the  matter  being 
wholly  subject  to  statutory  regulation,  copyright  on  a  second  appli- 
cation cannot  be  sustained. 

The  statutory  limit  of  copyright  cannot  be  extended  by  new  applica- 
tions. 

157  Fed.  Rep.  186,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Otto  Raymond  Bamettj  with  whom  Mr,  Clarence  T. 
Morse  was  on  the  brief,  for  plaintiff  in  error : 

Copyright  exists  at  common  law  as  an  incident  to  owner- 
ship. It  may  be  lost  by  publication.  The  copyright  statutes 
specify  what  steps  must  be  taken  to  avoid  such  loss  upon  pub- 
lication. Myers  v.  CaUaghaUy  5  Fed.  Rep.  726;  Wheaton  v. 
Peters,  8  Peters,  591;  Board  of  Trade  v.  Commission  Co.,  103 
Fed.  Rep.  902;  MiUar  v.  Taylor,  4  Burr.  2303;  Donaldson  v. 
Becket,  4  Burr.  2408. 

Copyright  law  is  to  be  construed  liberally  and  beneficially. 
Nothing  but  a  general  publication  or  an  express  surrender  of 
his  rights  will  affect  a  proprietor's  common-law  copyright  prop- 
erty. AUan  V.  Black,  56  Fed.  Rep.  754;  Myers  v.  CaUaghan, 
128  U.  S,  617. 

A  general  publication  is  one  which  gives  an  express  or  im- 
plied right  to  copy  the  thing  published. 

An  exhibition  of  a  painting  under  conditions  which  do  not 


CALIGA  V.  INTER  OCEAN  NEWSPAPER.        183 

215  U.  S.  Argument  for  Plaintiff  in  Error. 

give  to  the  public  a  right  to  copy  does  not  amount  to  a  general 
publication.  LaM  v.  Oxnard,  75  Fed.  Rep.  730;  Werckmeister 
V.  American  Lithographic  Co.,  134  Fed.  Rep.  321. 

A  deposit  of  a  photograph  in  the  Library  of  Congress  in  com- 
pliance with  the  copyright  statutes  merely  serves  to  identify 
the  thing  to  be  copyrighted  and,  not  giving  any  express  or 
impUed  right  to  copy,  does  not  amount  to  a  publication. 

Under  the  statute  the  only  condition  which  will  prevent  ob- 
taining a  copyright  is  prior  publication.  Rev.  Stat.,  §§  4952, 
4956.  A  copyright  registration  may  be  abandoned  by  failure 
to  publish  within  a  reasonable  time  after  such  registration. 
In  such  event  the  common-law  right  never  ceases.  Boud- 
cauU  V.  Hart,  Fed.  Cas.  No.  1,692;  CariUo  v.  Shook,  Fed.  Cas, 
No.  2,407. 

If,  therefore,  a  registration  may  be  abandoned  by  failure 
to  publish  within  a  reasonable  time,  it  may  also  be  abandoned 
by  a  subsequent  re-registration  in  the  absence  of  any  inter- 
mediate publication.  Osgood  v.  Aloe  Inst.  Co,,  69  Fed.  Rep. 
291. 

Common  law  cop3night  and  statutory  copyright  cannot  co- 
exist, the  first  only  terminates  upon  a  general  publication,  the 
second  only  begins  upon  a  general  publication.  Prior  to  such 
pubhcation,  common-law  copyright  remains  unimpaired  not- 
withstanding any  registration  which  may  have  been  made 
with  the  Librarian  of  Congress  for  the  purpose  of  obtaining 
the  protection  of  statutory  copyright.  Bobbs-MerriU  Co.  v. 
Straus,  210  U.  S.  339,  347;  Press  Publishing  Co.  v.  Monroe,  164 
U.  S.  105;  BaudcauU  v.  Hart,  Fed.  Cas.  No.  1,692;  CariUo  v. 
Shook,  Fed.  Cas.  No.  2,407. 

The  title  of  a  copyrighted  publication  must  correspond  with 
the  title  filed  for  purpose  of  copyright  with  the  Librarian  of 
Congress.  Mijglin  v.  White,  190  U.  S.  260. 

The  copyright  statute  providing  a  penalty  for  infringement 
is  in  form  penal,  but  is  remedial  in  intent.  Dwight  v.  Appleton, 
Fed.  Cas.  No.  4215. 

Plaintiff's  only  legal  remedy  for  copyright  infringement  is 


184  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  Error.  215  U.  S. 

under  Rev.  Stat.,  §4965,  for  the  penalty  there  provided. 
Walker  v.  Globe  Newspaper  Co.,  130  Fed.  Rep.  594. 

Publication  by  a  licensee  of  a  copyrighted  work  without 
marking  such  reproduction  "copyrighted,"  etc.,  does  not  in- 
validate the  copyright.  Press  Assn.  v.  Daily  Story  Co.,  120 
Fed.  Rep.  766. 

Any  unauthorized  reproduction  of  a  copyrighted  painting, 
or  of  the  substance  thereof,  whether  by  a  newspaper  cut  or 
otherwise,  is  an  infringement  of  the  copyright.  Werckmeis- 
tery.P.A  B,  Mfg.  Co.,  63  Fed.  Rep.  445,  449;  Schumacher  v. 
Schroenke,  30  Fed.  Rep.  690;  Folk  v.  Donaldson,  57  Fed.  Rep. 
32;  Springer  Co.  v.  Folk,  59  Fed.  Rep.  707;  Sanborn  Co.  v. 
DaJcin  Co.,  39  Fed.  Rep.  266. 

The  variance  between  the  date  of  copyright  registration 
pleaded  under  a  videlicet,  and  the  dates  proven  was  not  fatal, 
even  if  the  registration  of  November,  1901,  were  a  nullity. 
Greenleaf  on  Evidence,  §  61 ;  Stephen  on  Pleading,  292;  Rawle's 
Bouvier,  1195;  1  Chitty  PI.  257;  AUen  v.  Black,  56  Fed.  Rep. 
754;  Myers  v.  CaUaghan,  128  U.  S.  617;  Salt  Lake  City  v. 
Smith,  104  Fed.  Rep.  467;  Wheder  v.  Read,  36  Illinois,  85; 
Beaver  v.  SlanJcer,  94  Illinois,  175,  185;  Reinback  v.  Crabtree, 
77  Illinois,  188;  Long  v.  ConMin,  75  Illinois,  33;  United  States 
V.  Le  Baron,  4  Wall.  648;  Taylor  v.  Bank  of  Alexandria,  5 
Leigh  (Va.),  512;  Martin  v.  MiUer,  3  Missouri,  99;  Henry  v. 
TUson,  17  Vermont,  479. 

Mr.  James  J.  Barbour,  with  whom  Mr.  Clarence  A.  Knight 
was  on  the  brief  for  defendant  in  error : 

Where  two  copyrights  of  the  same  painting  are  procured  by 
the  painter  thereof,  the  second  copyright  is  void.  Mifflin  v. 
Dutton,  112  Fed.  Rep.  1004;  Laiurence  v.  Dana,  15  Fed.  Gas. 
No.  8,136;  Black  v.  Murray,  9  Sc.  Sess.  Gas.,  3d  Ser.,  341; 
Thomas  V.  Turner,  33  Gh.  Div.  292;  Scrutton,  Law  of  Gopy- 
right,  119;  Drone  on  Gopyright,  146;  Macgillivray  on  Gopy- 
rights,  27. 

A  patentee  cannot  have  two  patents  for  the  same  inven- 


CALIGA  V,  INTER  OCEAN  NEWSPAPER.        186 
215  U.  S.  Argument  for  Defendant  in  Error. 

tion.  22  Am.  &  Eng.  Ency.  314;  Miller  v.  Eagle  Mfg.  Co.,  151 
U.  S.  186;  Suffolk  Co.  v.  Hayden,  3  Wall.  315;  James  v.  Camp- 
beU,  104  U.  S.  356;  Mosler  Safe  Co.  v.  Mosler,  127  U.  S.  354; 
McCreary  v.  Pa.  Canal  Co.,  141  U.  S.  459;  Underwood  v.  Ger- 
6er/149U.S.224. 

The  reasons  are  that  the  power  to  create  a  monopoly  is  ex- 
hausted by  the  first  grant,  and  a  new  patent  for  the  same  in- 
vention would  operate  to  extend  the  monoj)oly  beyond  the 
period  allowed  by  law.  Odiome  v.  Amesbury  Nail  Factory,  2 
Mason,  28;  Miller  v.  Eagle  Mfg,  Co.,  151  U.  S.  186. 

W^hatever  rights  are  possessed  by  the  proprietor  of  a  copy- 
right are  derived  from  the  copyright  act  and  not  from  the 
common  law.  White-Smith  Music  Co.  v.  Apollo  Co.,  209  U.  S. 
1;  S.  C,  147  Fed.  Rep.  226;  BMs-MerriU  Co.  v.  Straus,  210 
U.  S.  339;  S.  C,  147  Fed.  Rep.  15;  Globe  Newspaper  Co.  v. 
Walker,  210  U.  S.  356;  Wheaton  v.  Peters,  8  Pet.  591 ;  Stevens  v. 
Glading,  17  How.  447;  Banks  v.  Manchester,  128  U.  S.  244; 
Thomas  v.  Hubbard,  131  U.  S.  123;  Holmes  v.  Hurst,  174  U.  S. 
82;  Palmer  v.  DeWiU,  47  N.  Y.  532. 

The  painting  was  published  prior  to  the  date  of  the  applica- 
tion for  the  copyright  of  November  7.  The  procurement  of  a 
copyright  is  a  publication  within  the  meaning  of  the  statute, 
and  vitiates  a  later  copyright.  Jewelers*  Agency  v.  Jewelers 
Pvb.  Co.,  155  N.  Y.  241 ;  Bobbs-MerriU  Co.  v.  Straus,  147  Fed. 
Rep.  15. 

The  selling  or  offering  for  sale  of  photographs  of  a  painting  is 
a  pubUcation  of  the  painting.  Am.  Tobacco  Co.  v.  Werckmeis- 
ter,  146  Fed.  Rep.  375. 

Compliance  with  the  statutory  requirement  that  the  notice 
of  copyright  shall  be  placed  upon  all  copies  sold  must  be 
pleaded  and  proved  as  a  prerequisite  to  an  action  for  recovery 
of  penalties  for  an  infringement  of  the  copyright.  Ford  v. 
Blaney  AmusemerU  Co.,  148  Fed.  Rep.  642;  Folk  v.  Gast  Lith. 
&  Eng.  Co.,  40  Fed.  Rep.  168;  Mifflin  v.  Button,  190  U.  S. 
265;  Higgins  v.  Keuffd,  140  U.  S.  428;  Thompson  v.  Hubbard, 
131  U.  S.  123. 


186  OCTOBER  TERM,  1909. 

Opinion  of  the  Ck>urt.  215  U.  S. 

Where  a  painter  by  repainting  a  copyrighted  picture  effects 
a  substantial  change,  the  original  copyright  does  not  protect 
the  picture  as  repainted.  Rev.  Stat.,  §  4959,  and  see  Fed. 
Stat.  Ann.;  Lawrence  v.  Dana^  15  Fed.  Gas.  No.  8,136;  Drone 
on  Copyrights,  146;  9  Cyc.  924. 

In  an  action  to  recover  for  an  infringement  of  a  cop3night  it 
must  be  shown  that  the  pubHcation  complained  of  is  a  copy  of 
or  copied  from  the  copyrighted  painting.  Reproduction  of  a 
copyrighted  photograph  of  a  painting  is  not  an  infringement 
of  the  copyright  on  the  painting.  Champney  v.  Haag,  121  Fed. 
Rep.  944. 

The  insertion  or  impression  of  a  copyright  notice  upon  a 
painting  before  applying  for  a  copyright  is  prohibited.  Rev, 
Stat.,  §  4963,  and  see  Fed.  Stat.  Ann. 

A  variance  can  only  be  where  there  is  a  clear  discrepancy 
between  averment  and  proof.  29  Am.  &  Eng.  Ency.  580; 
Walfard  v.  Anthony,  21  E.  C.  L.  75. 

A  brief  by  Mr,  E,  L.  Cobum  and  Afr.  Josiah  M.  McRdberts 
was  filed  by  leave  of  the  court  for  the  Tribune  Company  as 
amicus  curies  to  which  a  reply  brief  was  filed  by  the  counsel  for 
plaintiff  in  error. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error,  also  plaintiff  below,  brought  an  action 
in  the  Circuit  Coiut  of  the  United  States  for  the  Northern  Dis- 
trict of  Illinois  to  recover  damages  under  §  4965  of  the  Revised 
Statutes  of  the  United  States,  because  of  the  publication  by 
the  defendant  of  more  than  one  thousand  copies  of  a  newspa- 
per containing  a  picture  of  a  painting,  copyrighted  by  the 
plaintiff.  The  plaintiff  alleged  that  he  had  in  all  respects  com- 
plied with  the  Revised  Statutes  of  the  United  States  by  caus- 
ing to  be  deposited,  on  or  about  the  fifth  day  of  November, 
1901,  a  photograph  and  a  description  of  the  painting  for  the 
purpose  of  having  it  copjrighted,  which  deposit  was  before 


CALIGA  V.  INTER  OCEAN  NEWSPAPER.        187 
215  U.  S.  Opinion  of  the  Court. 

publication  of  the  same  in  the  United  States  or  in  any  foreign 
country.  By  reason  of  the  premises  and  the  compliance  with 
the  statutes  of  the  United  States  the  plaintiflF  claimed  to  be  en- 
titled to  a  copyright  for  the  painting  for  the  term  of  twenty- 
eight  years  from  and  after  the  recording  of  the  title  thereof  by 
the  Librarian  of  Congress  on  November  7,  1901. 

There  were  other  allegations,  and  proofs  tending  to  show  a 
pubhcation  of  a  copy  of  the  photograph  in  the  newspaper  of 
the  defendant  company.  In  the  course  of  the  trial  it  appeared 
that  the  plaintiff  had  deposited  a  description  and  photograph 
of  the  same  painting  with  the  Librarian  of  Congress  on  Octo- 
ber 7,  1901,  for  the  purpose  of  securing  a  copyright.  The  trial 
court  charged  the  jury,  as  a  matter  of  law,  that  the  plaintiff 
had  brought  his  suit  upon  the  wrong  copyright,  and  therefore 
directed  a  verdict  in  favor  of  the  defendant.  Upon  writ  of 
error  the  Circuit  Court  of  Appeals  for  the  Seventh  Circuit 
aflBrmed  this  judgment.  Caliga  v.  Inter  Ocean  Newspaper  Co,, 
157  Fed.  Rep.  186.   The  case  is  now  here  for  review. 

The  photographs  filed  upon  the  two  applications  for  a  copy- 
right are  identical.  Nor  is  any  substantial  change  in  the 
painting  shown;  the  copyrights  undertaken  to  be  secured  were, 
therefore,  upon  the  same  painting.  The  difference  is  that  in 
the  copyright  sued  upon,  that  of  November  7,  1901,  the  title 
and  description  are,  "The  Guardian  Angel.  Portrait  of  a 
young  girl  sitting,  hair  arranged  smoothly  over  the  ears,  hair 
parted  in  the  middle.  Her  guardian  angel  stands  behind  her, 
one  hand  resting  on  her  left  shoulder,  the  other  on  her  right 
arm."  The  description  accompanying  the  application  for  the 
cop3aight  of  October  7,  1901,  is,  "Maidenhood;  A  Young  Girl 
seated  beside  a  Window;  An  Angel  stands  behind  her." 

The  question  in  this  case  is :  Is  the  second  attempt  to  copy- 
right valid  and  effectual,  or  was  the  court  right  in  charging  in 
substance  that  it  was  void  and  of  no  effect? 

We  have  had  such  recent  and  frequent  occasions  to  con- 
sider the  nature  and  extent  of  the  copyright  laws  of  the  United 
States,  as  the  same  were  before  the  recent  revision,  which  took 


188  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

effect  July  1, 1909,  that  it  is  unnecess^try  to  enter  into  any  ex- 
tended discussion  of  the  subject  now.  Bobbs-MerriU  Co.  v. 
Straus,  210  U.  S.  339;  White-Smith  Music  Pub.  Co.  v.  ApoUo 
Company,  209  U.  S.  1;  American  Tobacco  Company  v.  Werck- 
meister,  207  U.  S.  284;  Bong  v.  CampbeU  Art  Co.,  214  U.  S.  236. 
In  these  cases  the  previous  cases  in  this  court  were  cited  and 
reviewed. 

As  a  result  of  the  decisions  of  this  court  certain  general 
propositions  may  be  affirmed.  Statutory  copyright  is  not  to 
be  confounded  with  the  common-law  right.  At  common-law 
the  exclusive  right  to  copy  existed  in  the  author  until  he  per- 
mitted a  general  publication.  Thus,  when  a  book  was  pub- 
lished in  print,  the  owner's  common-law  right  was  lost.  At 
common-law  an  author  had  a  property  in  his  manuscript,  and 
might  have  an  action  against  any  one  who  undertook  to  pub- 
lish it  without  authority.  The  statute  created  a  new  property 
right,  giving  to  the  author,  after  publication,  the  exclusive 
right  to  multiply  copies  for  a  hmited  period.  This  statutory 
right  is  obtained  in  a  certain  way  and  by  the  performance  of 
certain  acts  which  the  statute  points  out.  That  is,  the  author 
having  complied  with  the  statute  and  given  up  his  common-law 
right  of  exclusive  duplication  prior  to  general  publication,  ob- 
tained by  the  method  pointed  out  in  the  statute  an  exclusive 
right  to  multiply  copies  and  publish  the  same  for  the  term  of 
years  named  in  the  statute.  Congress  did  not  sanction  an  ex- 
isting right;  it  created  a  new  one.  Wheaton  v.  Peters,  8  Pet. 
591 ,  661 .  Those  violating  the  statutory  rights  of  the  author  or 
proprietor  are  subject  to  certain  penalties,  and  to  the  pa3anent 
of  certain  damages,  as  is  provided  in  the  statute. 

Section  4952  of  the  Revised  Statutes  as. amended  in  1891 
(3  Comp.  Stat.,  §  3406),  provides  that  the  proprietor  of  any 
painting,  upon  compliance  with  the  provisions  of  the  copy- 
right act,  has  the  sole  right  of  publishing,  copying  and  vending 
the  same.  By  §  4953  we  find  that  this  right  exists  for  the 
period  of  twenty-eight  years  from  the  recording  of  the  title  of 
the  copyright,  with.a  right  to  certain  extensions  after  the  ex- 


CALIGA  V.  INTER  OCEAN  NEWSPAPER.         189 
215  U.  S.  Opinion  of  the  Ck>urt. 

piration  of  the  twenty-eight  years,  as  provided  in  §  4954.  In 
§  4956  we  find  that  a  copyright  is  secured  by  depositing,  on  or 
before  the  day  of  publication,  in  this  or  any  foreign  country,  in 
case  of  a  painting,  a  photograph  of  the  painting,  accompanied 
by  a  description  thereof.  There  is  absolutely  no  provision  in 
the  statutes  for  a  second  filing  of  the  photograph  or  descrip- 
tion, nor  is  there  any  provision  as  to  filing  any  amendments 
thereto,  and  as  the  matter  is  wholly  the  subject  of  statutory 
regulation,  we  are  at  a  loss  to  perceive  by  what  authority  any 
second  application  for  the  same  painting,  with  a  view  to  se- 
curing a  copyright  thereon,  can  be  sustained.  If  it  could  be, 
we  see  no  reason  why  the  proprietor  might  not  thus  extend  the 
limit  of  copyright  fixed  in  the  statute  by  an  indefinite  number 
of  new  applications  and  filings  with  the  Librarian. 

The  argument  of  the  plaintiff  in  error  is  that,  inasmuch  as 
the  statutory  copyright  is  not  complete  before  a  publication  of 
the  subject-matter  thereof,  and  no  publication  being  shown 
prior  to  the  second  application,  it  was  within  his  power,  while 
his  rights  were  thus  inchoate,  to  make  the  second  application 
for  the  copyright,  that  of  November  7,  1901.  Assuming  that 
these  premises  are  correct  and  that  publication  was  requisite 
to  complete  the  right  to  be  secured  by  the  statute,  it  by  no 
means  follows  that  a  second  copyright  is  warranted  by  the 
statute.  On  the  other  hand,  as  we  have  already  stated,  the 
statute  is  barren  of  any  provisions  to  that  end.  There  is  no 
provision,  as  there  is  in  the  patent  law,  for  an  amended  appli- 
cation, and  under  the  patent  law  it  has  been  held  that  there 
is  no  authority  for  double  patenting.  Miller  v.  Eagle  Manu- 
facturing Company,  151  U.  S.  186.  This  is  so  because  the  first 
patent  exhausts  the  statutory  right  secured  by  the  act  of  Con- 
gress. 

In  this  case  the  plaintiff  had  complied  with  all  the  terms  of 
the  statute  on  October  7, 1901.  He  then  attempts  to  take  out 
a  new  cop3aight  under  the  same  statute  on  November  5,  1901, 
for  the  same  painting,  by  depositing  a  new  description  of  the 
painting ^nd  the  same  photograph.    It  is  true  there  is  a  change 


190  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 

in  the  title  of  the  painting,  and  a  slight  change  in  the  descrip- 
tion, but  these  matters  are  immaterial  and  cannot  enlarge  the 
right  of  the  plaintiff.  We  think  the  same  principle,  in  this 
aspect,  controls,  as  in  the  case  of  a  patent.  The  plaintiff  had 
already  exhausted  his  statutory  right  and  the  second  attempt 
availed  him  nothing. 

These  views  render  it  unnecessary  to  consider  whether  the 
record  shows  a  publication  of  the  painting  prior  to  Novem- 
ber 5,  1901.  For  the  reasons  stated,  we  are  of  opinion  that 
the  Circuit  Court  of  Appeals  was  right  in  holding  that  the  at- 
tempted duplication  of  the  copyright  was  void  and  of  no  effect. 

Affirmed. 


-•••- 


UNITED  STATES  i\  STEVENSON 

ERROR  TO  THE  DISTRICT  COURT  OF  THE  UNITED  STATES  FOR  THE 

DISTRICT  OF  MASSACHUSETTS. 

No.  292.     Argued  October  14,  15,  1909.~Decided  November  29,  1909. 

On  writ  of  error  taken  by  the  United  States  under  the  Criminal  Ap- 
peals Act  of  March  2,  1907,  c.  2564, 34  Stat.  1246,  where  the  indict- 
ment was  dismissed  as  not  sustained  by  the  statute  and  also  as  bad 
on  principles  of  general  law,  this  court  can  only  review  the  decision 
so  far  as  it  is  based  on  the  invalidity  or  construction  of  the  statute; 
it  cannot  consider  questions  of  general  law.  United  States  v.  Keitel, 
211  U.  S.  370. 

In  determining  whether  a  special  remedy  created  by  a  statute  for  en- 
forcing a  prescribed  penalty  excludes  all  other  remedies,  the  inten- 
tion of  Congress  may  be  found  in  the  history  of  the  legislation,  and, 
in  the  absence  of  clear  and  specific  language,  Congress  will  not  be 
presiuned  to  have  excluded  the  Government  from  a  weU*recognissed 
method  of  enforcing  its  statutes. 

The  fact  that  a  penal  statute  provides  for  enforcing  the  prescribed  pen- 
alty of  fine  and  forfeiture  by  civil  suit  does  not  necessarily  exclude 
enforcing  by  indictment;  and  so  held  in  regard  to  penalty  for  assist- 
ing the  immigration  of  contract  laborers  prescribed  by  §§  4  and  5  of 
the  Inmiigration  Act  of  February  20, 1907,  c.  1 134,  34  Stat.  898. 

Although  the  term  misdemeanor  has  at  times  been  used  in  the  statutes 


UNITED  STATES  v,  STEVENSON.  191 

216  n.  S.  Argument  for  the  United  States. 

of  the  United  States  without  strict  regard  to  its  common-law  mean- 
ing a  misdemeanor  at  all  times,  has  been  a  crime,  and  a  change  in  a 
statute  by  which  that  which  before  was  merely  unlawful  is  made  a 
misdemeanor  will  not  be  presumed  to  be  meaningless. 
When  the  Government  prosecutes  by  indictment  for  a  penalty  that  it 
might  sue  for  in  a  civil  action  the  person  proceeded  against  is  en- 
titled to  all  constitutional  protection  as  to  production  of  witnesses 
against  him  and  a  verdict  cannot  be  directed  against  him  as  might 
be  the  case  in  a  civil  action. 

The  facts  are  stated  in  the  opinion. 

The  Solicitor  General  for  the  United  States: 

On  the  construction  of  the  statute :  This  court  has  jurisdic- 
tion to  review  the  action  of  the  District  Court  in  sustaining  the 
demurrer  to  the  second  count  of  the  indictment,  which  charged 
defendants  with  assisting  contract  laborers  to  migrate  from 
Canada  into  the  United  States  in  violation  of  §  4  of  the  Immi- 
gration Act. 

The  Criminal  Appeals  Act,  in  allowing  immediate  appeal 
when  the  particular  questions  of  law  enumerated  in  the  act 
have  been  decided  against  the  Government,  intends  unques- 
tionably to  rid  the  Government  of  the  obstruction  of  criminal 
justice  through  mistakes  of  the  inferior  courts  on  such  ques- 
tions of  law.  There  is  nothing  in  this  act  which  forbids  the 
idea  that  in  such  case  as  the  present  the  Government  can  have 
a  review  by  this  court,  either  of  the  question  of  statutory  con- 
struction alone,  or  of  both  that  question  and  the  other  ques- 
tion on  which  the  lower  court  rested  its  judgment;  nor  does 
the  act  limit  this  court's  consideration  to  the  single  question 
which  gives  the  right  of  appeal. 

In  cases  where  the  question  which  gives  the  right  of  appeal 
requires  determination,  but  the  actual  decision  of  another 
point  by  the  lower  court  equally  led  to  the  judgment  below — so 
that  this  court's  decision  of  the  question  which  gives  the  right 
of  appeal  must  be  supplemented  by  decision  of  the  other 
question  by  the  lower  court  in  order  to  ascertain  what  eonse- 


192  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  216  U.  S. 

quences  upon  the  judgment  below  this  court  must  attach  to 
its  own  decision  of  the  question  which  gives  the  right  of  ap- 
peal— each  question  made  by  the  lower  court  a  basis  of  its 
judgment  is  involved  in  the  appeal.  Under  the  circumstances 
of  this  case,  the  court  ought  to  pass  upon  both  questions  actu- 
ally decided  below. 

When  this  court  finds  the  lower  court  right  upon  the  pomt 
which  made  direct  appeal  to  this  court  allowable,  it  can  at 
once  affirm  the  judgment  of  the  lower  court  without  consider- 
ing any  other  question  raised  or  decided  in  the  lower  court. 
United  States  v.  McDonald,  207  U.  S.  120;  United  States  v. 
Mason,  213  U.  S.  120.  And  when  this  court  finds  the  lower 
court  wrong  upon  the  point  which  made  appeal  allowable,  it 
can  at  once  reverse  the  judgment  of  the  lower  court  without 
considering  any  other  questions  raised  in  the  lower  court  but 
not  actually  decided  by  it.  United  States  v.  Bitty,  208  U.  S. 
393;  United  States  v.  Keitel,  211  U.  S.  370. 

Indictment  is  an  allowable  mode  of  prosecution  for  violating 
§  4  of  the  Immigration  Act  of  1907;  and  the  action  of  debt  al- 
lowed by  §  5  is  not  exclusive.  The  wording  of  §  5  as  to  action 
of  debt  is  merely  permissive  and  does  not  prohibit  indictment; 
and  no  intention  to  deny  the  Government  the  ordinary  rem- 
edies of  indictment  or  information  for  prosecution  for  a  pen- 
alty will  be  inferred.  Savings  Bank  v.  United  States,  19  Wall. 
227,  238,  239;  Crof ton's  Case,  1  Mod.  34;  United  States  v.  Stock- 
ing, 87  Fed.  Rep.  857. 

Either  indictment  or  information  will  lie  under  a  statute 
creating  an  offense  punishable  by  penalty  and  which  prescribes 
no  remedy  or  allows  some  special  remedy  not  intended  to  be 
exclusive;  because  they  are  ordinary  and  approved  methods 
of  prosecution  for  an  offense  not  above  a  misdemeanor. 

As  to  indictment:  2  Hawk.  P.  C,  ch.  25,  §  4;  1  Chitty  Grim. 
Law  (Am.  Ed.,  1847),  *162;  Harris's  Crim.  Law  (London,  101), 
p.  333;  United  States  v.  Chouteau,  102  U.  S.  603,  610. 

As  to  information:  2  Hawk.  P.  C,  ch.  26,  §§  1,  2;  1  Chitty's 
Grim.  Law,  *844,  845;  4  Bl.  Com.  309,  310;  Harris's  Grim. 


UNITED  STATES  i;.  STEVENSON.  193 

215  U.  S.  Argument  for  Defendants  in  Error. 

Law,  p.  343;  United  States  v.  Buzzo,  18  Wall.  126;  Ex  parte 
Wilson,  114  U.  S.  417,  424,  425. 

Mr.  Herbert  Parker,  Mr.  Charles  C.  Milton  and  Afr.  Henry 
H.  FvUer,  for  defendants  in  error,  submitted : 

On  the  construction  of  the  statute :  A  violation  of  §  4  of  the 
Immigration  Act  cannot  be  prosecuted  by  indictment.  While 
made  a  misdemeanor  no  penalty  is  prescribed  in  this  section, 
and  the  next  section  provides  for  recovery  of  a  money  penalty 
by  suit.  This  constitutes  a  debt  which  is  recoverable  only  by 
civil  action. 

It  is  a  universal  rule  of  statutory  interpretation  that,  where 
a  statute  prescribes  a  particular  mode  of  procedure  for  the  en- 
forcement of  a  penalty  for  an  offense  therein  created,  that 
mode  of  procedure  must  be  followed.  The  word  "may"  in  the 
statute  is  applicable  to  the  parties  who  are  permitted  to  main- 
tain the  civil  action,  any  one  of  whom  may  so  proceed.  1 
Wharton's  Grim.  Law,  §  25;  United  States  v.  Moore,  11  Fed. 
Rep.  248;  United  States  v.  Howard,  17  Fed.  Rep.  638;  United 
States  V.  Craft,  43  Fed.  Rep.  374.  * 

We  have,  therefore,  the  case  of  an  act  described  as  a  misde- 
meanor in  which  there  is  no  provision  whatsoever  for  punish- 
ment, except  by  a  penalty  to  be  recovered  by  civil  action. 
There  is  no  alternative  punishment  or  procedure  mentioned 
in  this  statute,  nor  is  there  any  general  statute  providing  for  a 
penalty  for  misdemeanor. 

It  follows,  therefore,  that  the  provisions  of  the  statute  pro- 
viding a  civil  process  to  enforce  the  penalties  for  violation  of 
§  4  are  exclusive,  and  no  indictment  will  lie.  United  States  v. 
McElroy,  115  Fed.  Rep.  252;  MoUer  v.  United  States,  57  Fed. 
Rep.  490, 495. 

It  is  obvious  from  the  history  of  §  4  that  Congress  may  have 
intended  to  change  the  character  of  the  offense  set  forth  by 
said  section  from  the  civil  to  the  criminal  side,  for  §  4  of  the 
Immigration  Act  of  March  3, 1903,  characterizes  the  offense  as 
*' unlawful,''  and,  in  the  present  section,  which  is,  in  effect,  a 
VOL.  ccxv — 13 


194  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

reSnactment  of  the  act  of  1903,  a  change  is  made  by  substi- 
tuting the  words  "a  misdemeanor"  for  the  word  "unlawful," 
and  it  is  submitted  that  the  mere  characterization  of  an  act  as 
a  misdemeanor,  without  some  accompaniment  rendering  such 
offense  punishable  by  criminal  process,  cannot  avail  to  alter 
the  technical  and  true  character  of  such  offense,  or  create  by 
implication  an  indictable  crime. 

The  nature  of  the  statute  is  essentially  penal,  and  no  loose 
construction  is  permissible.  The  forfeiture  for  the  offense  and 
the  method  by  which  such  forfeiture  may  be  secured  to  the 
United  States  are  prescribed  in  the  same  section  of  the  statute, 
and  it  is  submitted  that  the  procedure  therein  set  forth  must 
be  followed. 

Unless  a  criminal  procedure  is  provided  in  terms,  none  such 
can  be  called  to  the  assistance  of  an  intent,  however  manifest 
it  may  be  made  to  appear.  A  crime  can  be  created  only  by 
express  declaration  of  a  statute.  It  cannot  take  form,  through 
colorable  suggestions  of  intent,  nor  can  it  rest  upon  implica- 
tions, especially  where  such  are  in  conflict  with  the  express 
provision  of  the  statute. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

This  case  comes  to  this  court  under  the  provisions  of  the 
Criminal  Appeals  Act  of  March  2, 1907,  c.  2564,  34  Stat.  1246, 
providing  for  writs  of  error  on  behalf  of  the  United  States  in 
certain  criminal  cases.  The  defendants  in  error  were  indicted 
for  the  violation  of  the  Immigration  Act  of  February  20,  1907, 
c.  1134,  34  Stat.  898,  and  charged  with  unlawfully  assisting 
certain  alien  contract  laborers  to  migrate  from  Canada  to  the 
United  States,  in  violation  of  the  statute.  The  District  Court, 
upon  demurrer  to  the  indictment,  held  the  second  count  thereof 
to  be  invalid,  because  the  sole  remedy  for  a  violation  of  the  stat- 
ute was  in  a  civil  action  for  the  recovery  of  a  penalty  under  §  5 
of  the  act.  The  court  also  held  the  second  count  bad  because 
it  did  not  sufficiently  specify  the  acts  of  assistance  constituting 


UNITED  STATES  v.  STEVENSON.  1% 

215  U.  S.  Opimon  of  the  Court. 

the  alleged  offense.  Rulings  were  made  concerning  the  first 
count  not  involved  in  this  proceeding. 

From  this  statement  it  is  apparent  that  the  court  below  pro- 
ceeded upon  two  grounds,  one  of  which  concerned  the  con- 
struction of  the  statute,  the  other  of  which  decided  the  inva- 
hdity  of  the  indictment  upon  general  principles  of  criminal 
law.  We  are  therefore  met  at  the  threshold  of  the  case  with 
the  question  whether  a  writ  of  error  will  lie  in  such  a  case  as 
the  one  under  consideration,  under  the  provisions  of  the  Crim- 
inal Appeals  Act  of  1907. 

This  statute  was  before  the  court  in  the  case  of  United  States 
v.  Keitd,  211 U.  S.  370,  and  is  given  in  full  in  the  margin  of  the 
report  of  that  case.  In  that  case  it  was  held  that  the  purpose 
of  the  statute  being  to  permit  a  review  in  this  court  of  decisions 
based  upon  the  invalidity  or  construction  of  the  criminal 
statutes  of  the  United  States,  the  decisions  of  the  lower  courts 
were  intended  to  be  reviewed  only  upon  such  questions,  and 
the  whole  case  could  not  be  brought  here  for  review.  In  the 
Keitel  case  it  was  insisted  that  this  court  should  consider  the 
validity  of  the  indictment  upon  questions  of  general  law  not 
decided  in  the  court  below.  We  are  here  confronted  with  a 
case  in  which  a  decision  of  the  court  below  sustaining  a  de- 
murrer to  an  indictment  involves  not  only  the  construction  of 
a  Federal  statute,  but  another  ground  upon  which  the  decision 
was  also  rested,  which  involves  the  sufficiency  of  the  indict- 
ment on  general  principles. 

The  object  of  the  criminal  appeals  statute  was  to  permit  the 
United  States  to  have  a  review  of  questions  of  statutory  con- 
struction in  cases  where  indictments  had  been  quashed,  or  set 
aside,  or  demurrers  thereto  sustained,  with  a  view  to  prosecut- 
ing offenses  under  such  acts  when  this  court  should  be  of  opin- 
ion that  the  statute,  properly  construed,  did  in  fact  embrace 
an  indictable  offense.  Inasmuch  as  the  United  States  could 
not  bring  such  a  case  here  after  final  judgment,  it  was  intended 
to  permit  a  review  of  such  decisions  as  are  embraced  within  the 
statute,  at  the  instance  of  the  Government,  in  order  to  have  a 


196  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

final  and  determinative  construction  of  the  act  and  to  prevent 
a  miscarriage  of  justice  if  the  construction  of  the  statute  in  the 
court  below  was  unwarranted. 

In  the  Keitel  case  this  court  said  (211  U.  S.  398) : 

"That  act  [of  March  2,  1907],  we  think,  plainly  shows  that 
in  giving  to  the  United  States  the  right  to  invoke  the  authority 
of  this  court  by  direct  writ  of  error  in  the  cases  for  which  it 
provides  contemplates  vesting  this  court  with  jurisdiction  only 
to  review  the  particular  question  decided  by  the  court  below 
for  which  the  statute  provides." 

As  the  question  of  general  law  involved  in  the  decision  of  the 
court  below  is  not  within  either  of  the  classes  named  in  the 
statute,  giving  a  right  of  review  in  this  court,  we  must  decline 
to  consider  it  upon  this  writ  of  error. 

We  come  now  to  consider  the  construction  of  the  statute  and 
the  validity  of  the  indictment  in  that  respect.  Sections  4  and  5 
of  the  Immigration  Act  under  consideration  are  given  in  the 
margin.^ 

^  Sec.  4.  That  it  shall  be  a  misdemeanor  for  any  person,  company, 
partnership,  or  corporation,  in  any  manner  whatsoever,  to  prepay  the 
transportation  or  in  any  way  to  assist  or  encourage  the  importation  or 
migration  of  any  contract  laborer  or  contract  laborers  into  the  United 
States,  unless  such  contract  laborer  or  contract  laborers  are  exempted 
under  the  terms  of  the  last  two  provisos  contained  in  section  two  of  this 
act. 

Sec.  5.  That  for  every  violation  of  any  of  the  provisions  of  sec- 
tion four  of  this  act  the  persons,  partnership,  company,  or  corporation 
violating  the  same,  by  knowingly  assisting,  encouraging,  or  soliciting 
the  migration  or  importation  of  any  contract  laborer  into  the  United 
States  shall  forfeit  and  pay  for  every  such  offense  the  sum  of  one 
thousand  dollars,  which  may  be  sued  for  and  recovered  by  the  United 
States,  or  b}*^  any  person  who  shall  first  bring  his  action  therefor  in  his 
own  name  and  for  his  own  benefit,  including  any  such  alien  thus  prom- 
ised labor  or  service  of  any  kind  as  aforesaid,  as  debts  of  like  amount 
are  now  recovered  in  the  courts  of  the  United  States;  and  separate 
suits  may  be  brought  for  each  alien  thus  promised  labor  or  service  of 
any  kind  as  aforesaid.  And  it  shaU  be  the  duty  of  the  district  attorney 
of  the  proper  district  to  prosecute  every  such  suit  when  brought  by  the 
United  States. 


UNITED  STATES  v,  STEVENSON.  197 

215  U.  8.  Opinion  of  the  Court. 

A  reading  of  these  sections  makes  it  apparent  that  the  act 
makes  it  a  misdemeanor  to  assist  or  encourage  the  importation 
of  contract  laborers,  and  that  violations  thereof  may  be  pmi- 
ished  with  forfeiture  and  payment  of  $1,000  for  each  offense, 
which,  it  is  provided,  may  be  sued  for  and  recovered  by  the 
United  States,  or  by  any  person  bringing  the  action,  as  debts 
of  like  amounts  are  recovered  in  the  courts  of  the  United 
States;  and  it  is  made  the  duty  of  the  district  attorney  of  the 
proper  district  to  prosecute  every  such  suit  when  brought  by 
the  United  States. 

The  contention  of  the  defendants  in  error  is  that  the  action 
for  a  penalty  is  exclusive  of  all  other  means  of  enforcing  the 
act;  and  that  an  indictment  will  not  lie  as  for  an  alleged  offense 
within  the  terms  of  the  act.  The  general  principle  is  invoked 
that  where  a  statute  creates  a  right  and  prescribes  a  particular 
remedy  that  remedy,  and  none  other,  can  be  resorted  to.  An 
illustration  of  this  doctrine  is  found  in  Globe  Newspaper  Com- 
pany V.  Walker,  210  U.  S.  356,  in  which  it  was  held  that  in  the 
copyright  statutes  then  in  force  Congress  had  provided  a  sys- 
tem of  rights  and  remedies  complete  and  exclusive  in  their 
character.  This  was  held  because,  after  a  review  of  the  history 
of  the  legislation,  such,  it  was  concluded,  was  the  intention  of 
Congress. 

The  rule  which  excludes  other  remedies  where  a  statute  cre- 
ates a  right  and  provides  a  special  remedy  for  its  enforcement 
rests  upon  the  presumed  prohibition  of  all  other  remedies.  If 
such  prohibition  is  intended  to  reach  the  Government  in  the 
use  of  known  rights  and  remedies,  the  language  must  be  clear 
and  specific  to  that  effect.  Dollar  Savings  Bank  v.  United 
States,  19  Wall.  227, 238, 239.  In  the  present  case,  if  it  could 
be  gathered  from  the  terms  of  the  statute,  read  in  the  light  of 
the  history  of  its  enactment,  that  Congress  has  here  provided 
an  exclusive  remedy  intended  to  take  from  the  Government 
the  right  to  proceed  by  indictment,  and  leaving  to  it  only  an 
action  for  the  penalty,  civil  in  its  nature,  then  no  indictment 
will  lie,  and  the  court  below  was  correct  in  its  conclusion. 


198  OCTOBER  TERM,  1909. 

Opinion  d  the  Court.  215  U.  S. 

It  is  undoubtedly  true  that  a  penalty  of  this  character,  in 
the  absence  of  statutory  provisions  to  the  contrary,  may  be 
enforced  by  criminal  proceedings  under  an  indictment.  The 
doctrine  was  stated  as  early  as  Adams  v.  Woods,  2  Cranch,  336, 
340,  wherein  Mr.  Chief  Justice  Marshall  said : 

"  Almost  every  fine  or  forfeiture  under  a  penal  statute,  may 
be  recovered  by  an  action  of  debt  as  well  as  by  informa- 
tion. ...  In  this  particular  case,  the  statute  which 
creates  the  forfeiture  does  not  prescribe  the  mode  of  de- 
manding it;  consequently,  either  debt  or  information  would 
Ue." 

In  Lees  v.  United  States,  150  U.  S.  476,  479,  the  doctrine  was 
laid  down  that  a  penalty  may  be  recovered  by  indictment  or 
information  in  a  criminal  action,  or  by  a  civil  action  in  the 
form  of  an  action  for  debt.  It  is  to  be  noted  that  this  statute 
(§  5  of  the  Immigration  Act)  does  not  in  terms  undertake  to 
make  an  action  for  the  penalty  an  exclusive  means  of  enforc- 
ing it,  and  only  provides  that  it  may  be  thus  sued  for  and  re- 
covered. There  is  nothing  in  the  terms  of  the  act  specifically 
undertaking  to  restrict  the  Government  to  this  method  of  en- 
forcing the  law.  It  is  not  to  be  presumed,  in  the  absence  of 
language  clearly  indicating  the  contrary  intention,  that  it  was 
the  purpose  of  Congress  to  take  from  the  Government  the 
well-recognized  method  of  enforcing  such  a  statute  by  indict- 
ment and  criminal  proceedings. 

When  we  look  to  the  history  of  the  act  we  think  it  becomes 
manifest  that  Congress  did  not  so  intend.  The  Immigration 
Act  of  March  3,  1903,  c.  1012, 32  Stat.  1213,  was  amended  by 
the  act  of  February  20,  1907,  c.  1134,  34  Stat.  898,  now  under 
consideration.  The  original  act  made  it  unlawful  to  assist  or 
encourage  the  importation  or  migration  of  certain  aliens  into 
the  United  States.  The  amended  act  declares  that  such  as- 
sistance, etc.,  shall  be  a  misdemeanor.  It  is  not  to  be  pre- 
sumed that  this  change  is  meaningless,  and  that  Congress  had 
no  purpose  in  making  it.  Nor  can  we  perceive  any  purpose  in 
making  the  change  except  to  manifest  the  intention  of  Con- 


UNITED  STATES  r.  STEVENSON.  199 

215  U.  S.  Opinion  of  the  Court. 

gress  to  make  it  clear  that  the  acts  denounced  should  con- 
stitute a  crime  which  would  carry  with  it  the  right  of  the 
Government  to  prosecute  as  for  a  crime.  This  term  "  misde- 
meanor" has  been  generally  understood  to  mean  the  lower 
grade  of  criminal  offense  as  distinguished  from  a  felony. 
It  is  true  that  the  term  has  often  been  used  in  the  statutes 
of  the  United  States  without  strict  regard  to  its  common- 
law  meaning;  and  sometimes  to  describe  offenses  of  a  high 
grade,  which  have  been  declared  in  the  statutes  to  be  mis- 
demeanors. In  the  statutes  of  the  States  the  term  has  gen- 
erally been  defined  as  embracing  crimes  not  punishable  by 
death  or  imprisonment  in  the  penitentiary.  And  we  may 
note  that  the  new  penal  code  of  the  United  States  which 
will  go  mto  effect  on  January  1,  1910  (§  335,  c.  321,  35  Stat. 
1088),  provides  that  all  offenses  which  may  be  punished  by 
death,  or  imprisonment  for  a  term  exceeding  one  year,  shall 
be  termed  felonies;  all  other  offenses  shall  be  termed  mis- 
demeanors. But  at  all  times  a  misdemeanor  has  been  a 
crime.  Commonwealth  of  Kentucky  v.  Dennison,  24  How.  66, 
69. 

Congress  having  declared  the  acts  in  question  to  constitute 
a  misdemeanor,  and  having  provided  that  an  action  for  a 
penalty  may  be  prosecuted,  we  think  there  is  nothing  in  the 
terms  of  the  statute  which  will  cut  down  the  right  of  the  Gov- 
ernment to  prosecute  by  indictment  if  it  shall  choose  to  resort 
to  that  method  of  seeking  to  pimish  an  alleged  offender  against 
the  statute.  Nor  does  this  conclusion  take  away  any  of  the 
substantial  rights  of  the  citizen.  He  is  entitled  to  the  con- 
stitutional protection  which  requires  the  Government  to  pro- 
duce the  witnesses  against  him,  and  no  verdict  against  him  can 
be  directed,  as  might  be  the  case  in  a  civil  action  for  the  pen- 
alty.   Hepner  v.  United  Slates,  213  U.  S.  103. 

We  therefore  reach  the  conclusion  that  the  court  erred  in 
sustaining  the  demurrer  to  the  second  count  of  the  indictment, 
so  far  as  that  ruling  is  based  upon  the  construction  of  the 
statute  in  question.    The  judgment  is  reversed  and  the  case 


200  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  215  U.  S. 

remanded  to  the  District  Court  of  the  United  States  for  the 

District  of  Massachusetts  for  further  proceedings  in  conformity 

with  this  opinion. 

Reversed. 


*•» 


UNITED  STATES  v,  STEVENSON  (NO.  2). 

ERROR  TO  THE  DISTRICT  COURT  OF  THE  UNITED  STATES  FOR  THE 

DISTRICT  OF  MASSACHUSETTS. 

No.  293.    Argued  October  14, 15, 1909.— Decided  November  29, 1909. 

Where  Congress  has  made  an  act  a  crime  and  indictable  it  follows  that 
if  two  or  more  conspire  to  commit  the  act  they  conspire  to  conmiit  an 
offense  against  the  United  States  within  the  meaning  of  §  5440,  Rev. 
Stat.;  and  so  held  in  regard  to  conspiring  to  sussist  immigration  of 
contract  laborers  in  violation  of  §  4  of  the  Immigration  Act  of 
February  20, 1907,  c.  1134, 34  Stat.  898. 

It  is  within  the  power  of  Congress  to  regulate  the  punishment  of  crimes 
and  it  may  make  the  punishment  for  conspiring  to  commit  a  crime 
greater  than  that  for  committing  the  crime  itself. 

The  facts  are  stated  in  the  opinion. 

The  Solicitor  General  for  the  United  States : 

Even  if  indictment  will  not  lie  for  a  violation  of  §  4  of  the 
Immigration  Act  of  1907,  Congress  has  made  that  offense  an 
express  misdemeanor;  and  such  statutory  classification  of  the 
crime  brings  a  conspiracy  to  commit  it  unmistakably  within 
§  5440,  Rev.  Stat.  Kentucky  v.  Dennison,  24  How.  66,  99; 
United  States  v.  Van  Schaick,  134  Fed.  Rep.  592;  Cohen  v. 
United  States,  157  Fed.  Rep.  651 ;  United  States  v.  Tsokas,  163 
Fed.  Rep.  129. 

It  is  enough  in  any  case  to  make  an  "offense  against  the 
United  States"  within  the  meaning  of  §  5440,  Rev.  Stat.,  that 
the  offense  which  the  conspiracy  contemplates  is  a  crime,  in 
the  fundamental  sense  of  a  prohibited  public  wrong,  visited 
with  personal  punishment.  Neither  the  mode  of  prosecution 
nor  the  severity  of  the  punishment  for  the  offense  is  material. 


UNITED  STATES  v,  STEVENSON  (NO.  2).        201 
215  U.  S.  Argument  for  Defendant  in  Error. 

Moore  v.  Illinois j  14  How.  13,  19;  Lees  v.  United  States,  150 
U.  S.  476;  Boyd  v.  United  States,  116  U.  S.  616;  United  States 
V.  Britton,  108  U.  S.  199,  distinguished. 

As  to  the  form  of  proceeding  by  which  a  violation  of  §  4  is 
to  be  prosecuted,  it  is  enough  to  say  that  §  5440  looks  solely 
to  the  nature  of  the  act  which  the  conspiracy  contemplates, 
and  not  to  the  nature  of  the  remedy  given  for  that  act.  It  is 
enough  that  the  object  of  the  conspiracy  is  an  act  criminal  in 
its  own  quality.    United  States  v.  Chouteau,  102  U.  S.  603. 

The  operation  of  §  5440  does  not  depend  upon  the  amount 
or  extent  of  punishment  imposed  for  the  "  offense  against  the 
United  States."  Death,  imprisonment,  fine,  forfeiture — each 
suffices,  if  the  wrongful  act  is  public  in  nature  and  therefore  a 
crime.   Chme  v.  United  States,  159  U.  S.  590. 

For  cases  of  conspiracy  under  §  5440  to  commit  offenses  un- 
der the  statutes  regulating  railroads,  where  only  a  money 
penalty  attached  to  the  offense,  see  Thomas  v.  United  States, 
156  Fed.  Rep.  897;  United  States  v.  Clark,  164  Fed.  Rep.  75; 
Evans  v.  United  States,  153  U.  S.  584,  587;  Coffin  v.  United 
States,  156  U.  S.  432,  448. 

Assisting  or  encouraging  the  importation  or  migration  of 
alien  contract  laborers  is  naturally  and  usually  a  course  of 
action  rather  than  a  single  act,  and  is  therefore  closely  analo- 
gous to  engaging  in  a  business  or  occupation,  which  may  be 
averred  generally  without  details. 

In  an  indictment  for  aiding  and  abetting  a  crime  it  is 
enough  to  say  that  the  defendants  aided  and  abetted,  without 
particularizing  the  acts  of  aiding  or  abetting.  Cases  supra 
and  United  States  v.  Simmons,  96  U.  S.  360,  363;  United  States 
V.  Mills,  7  Pet.  138, 141. 

Mr.  Herbert  Parker,  Mr.  Charles  C.  Milton  and  Mr.  Henry 
H.  FvUer,  for  defendant  in  error,  submitted : 

The  demurrer  to  the  second  count  was  properly  sustained. 
Section  4  of  the  Immigration  Act  of  1907  will  not  support  an 
indictment  for  conspiracy  under  §  5440,  Rev.  Stat. 


202  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

An  offense  against  the  United  States  which  may  be  the  basis 
for  an  indictment  for  conspiracy  under  §  5440  must  be  such  an 
offense  as  will  itself  support  an  indictment.  United  States  v. 
Britton,  108  U.  S.  199;  United  States  v.  Watson,  17  Fed.  Rep. 
145, 148;  United  States  v.  Payne,  22  Fed.  Rep.  426, 427. 

Although  §  4  has  attempted  to  define  a 'crime,  there  has 
been  provided  no  punishment  for  such  offense  within  the  lan- 
guage of  the  act  itself,  other  than  the  penalty  recoverable  by  a 
judgment  in  a  civil  suit.  As  to  the  effect  of  this,  see,  and  also 
distinguish,  United  States  v.  Tsokas,  163  Fed.  Rep.  129,  131 ; 
United  States  v.  Van  Schaick,  134  Fed.  Rep.  602;  United  States 
v.  Kellam,  7  Fed.  Rep.  843.  The  determination  of  the  case  of 
United  States  v.  Stevenson,  No.  292,  simultaneously  argued, 
must  determine  this  case  also,  and,  if  it  shall  be  held  that  §  4  of 
the  Immigration  Act  of  1907  sets  forth  no  offense  for  which  an 
indictment  will  lie,  then  the  demurrer  to  the  second  count  must 
be  sustained. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

This  case  was  argued  and  submitted  with  No.  292,  just  de- 
cided. The  indictment  herein  in  its  second  count  charges  a 
conspiracy,  under  §  5440  of  the  Revised  Statutes  of  the  United 
States,  to  commit  the  offense  of  assisting  alien  contract  la- 
borers to  migrate  into  the  United  States,  in  violation  of  the 
statutes  of  the  United  States.  Inasmuch  as  the  court  below 
had  already  reached  the  conclusion,  in  considering  the  former 
case  (No.  292,  ante),  that  assisting  alien  contract  laborers  was 
not  punishable  as  a  crime  by  indictment  under  the  Immigra- 
tion Act,  it  held  that  it  followed  that  to  conspire  to  assist  such 
migration  was  not  an  offense  against  the  United  States  within 
the  meaning  of  §  5440  of  the  Revised  Statutes  of  the  United 
States.    That  section  provides: 

"If  two  or  more  persons  conspire  either  to  commit  any  of- 
fense against  the  United  States,  or  to  defraud  the  United 
States  in  any  manner  or  for  any  purpose,  and  one  or  more  of 


EVERETT  V.  EVERETT.  203 

215  U.  S.  Syllabus. 

such  parties  do  any  act  to  effect  the  object  of  the  conspiracy, 
all  the  parties  to  such  conspiracy  shall  be  liable  to  a  penalty  of 
not  less  than  one  thousand  dollars  and  not  more  than  ten  thou- 
sand dollars,  and  to  imprisonment  not  more  than  two  years." 
Inasmuch  as  we  have  already  held  that  Congress,  in  making 
the  assistance  of  contract  laborers  into  the  United  States  a 
misdemeanor,  has  made  the  same  a  crime  indictable  as  such 
under  the  Immigration  Act  of  1907,  it  must  necessarily  follow 
that  if  two  or  more  persons,  as  is  charged  in  the  indictment 
imder  consideration,  conspire  to  assist  such  importation,  they 
do  conspire  to  commit  an  offense  against  the  United  States 
within  the  terms  of  §  5440  of  the  Revised  Statutes  of  the 
United  States.  In  this  view,  applying  the  principles  laid  down 
in  the  opinion  in  case  No.  292,  ante,  we  think  that  the  court  be- 
low erred  in  sustaining  the  demurrer  to  the  second  count  of  the 
indictment.  Nor  does  it  make  any  difference  that  Congress 
has  seen  fit  to  aflSx  a  greater  punishment  to  the  conspiracy  to 
commit  the  offense  than  is  denounced  against  the  offense  it- 
self; that  is  a  matter  to  be  determined  by  the  legislative  body 
having  power  to  regulate  the  matter.  Clune  v.  United  States, 
159  U.  S.  590. 

Judgment  reversed. 


EVERETT  V.  EVERETT. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OP  NEW  YORK. 
No.  1.    Argued  October  22,  1909.— Decided  November  29,  1909. 

Where  the  fundamental  fact  in  issue  in  a  suit  by  a  wife  for  separate 
maintenance  is  whether  there  was  a  marriage,  and  the  court  having 
jurisdiction  finds  that  the  wife's  petition  should  not  be  granted  but 
should  be  dismissed,  the  courts  of  another  State  must,  imder  the  full 
faith  and  credit  clause  of  the  Constitution,  regard  such  decree  as  de- 
termining that  there  was  no  marriage  even  though  the  husband  may 
have  asserted  other  defenses;  nor  can  the  wife,  in  a  suit  depending 
solely  on  the  issue  of  whether  there  was  a  marriage,  prove  by  oral 


204  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

testimony,  in  the  absence  of  a  bill  of  exceptions,  that  the  decree  may 
have  rested  on  any  of  the  other  defenses  asserted  by  the  husband. 
180  N.  Y.  452,  affirmed. 

This  is  a  writ  of  error  to  review  a  judgment  of  the  Supreme 
Court  of  New  York  upon  the  ground  that  the  final  order  of 
that  court,  entered  pursuant  to  the  mandate  of  the  Court  of 
Appeals  of  New  York  in  this  case,  failed  to  give  full  faith  and 
credit  to  the  judicial  proceedings  in  a  certain  action  deter- 
mined in  the  Probate  Court  of  Suffolk  County,  Massachusetts. 

The  facts  out  of  which  this  question  arose  may  be  thus 
sunmiarized : 

The  present  plaintiff  in  error,  Georgia  L.  Everett,  on  or 
about  April  1st,  1897,  brought  this  action  in  the  Supreme 
Court  of  Kings  County,  New  York,  against  the  defendant  in 
error,  Edward  Everett,  alleging  that  she  and  the  defendant 
were  lawfully  intermarried  in  that  county  before  a  Justice  of 
the  Peace,  on  the  thirtieth  day  of  October,  1884;  that  under 
the  false  pretense  that  that  marriage  would  never  be  recog- 
nized by  his  family,  and  that  a  ceremonial  marriage  would 
have  to  take  place  before  a  Minister  of  the  Gospel,  the  defend- 
ant, on  or  ftbout  December  17th,  1887,  fraudulently  instituted 
an  action  in  the  same  court  to  have  the  above  marriage  an- 
nulled; that  the  plamtiff  had  a  valid  defense  to  such  action, 
but  in  consequence  of  fraudulent  representations  to  her  by 
the  defendant  she  made  no  defense  therein,  by  reason  whereof 
a  decree  was  rendered  on  or  about  April  9th,  1888,  declaring 
that  the  alleged  marriage  between  her  and  the  defendant  was 
null  and  void ;  and  that  they  had  Uved  and  cohabited  together 
as  husband  and  wife  from  the  date  of  said  marriage  down  to 
and  including  June  1st,  1891. 

The  specific  relief  asked  in  this  case,  brought  in  1897,  was 
a  judgment  that  the  decree  of  April  9th,  1888,  in  the  case 
brought  in  1887,  be  vacated  and  set  aside,  and  that  it  be  ad- 
judged that  the  marriage  between  the  plaintiff  and  the  de- 
fendant was  binding  and  in  full  force  and  effect. 

The  defendant,  by  answer,  controverted  all  the  material 


EVERETT  V,  EVERETT.  205 

215  n.  S.  statement  of  the  Case. 

facts  alleg^  in  this  case  relating  to  the  obtaining  of  the  above 
decree  of  April  9th,  1888.  He  set  forth  various  grounds  of 
defense,  but  none  of  them  raised  any  question  of  a  Federal 
nature.  He  made,  however,  a  separate,  special  defense  herein 
based  upon  the  record  of  certain  proceedings  in  the  Probate 
Court  of  Suffolk  County,  Massachusetts. 

The  allegations  of  the  answer  as  to  those  proceedings  were 
substantially  these:  That  on  or  about  February  21st,  1895, 
the  present  plaintiff,  Georgia  L.  Everett,  brought  an  action 
against  him  in  the  Probate  Court  of  Suffolk  County  Massa- 
chusetts, claiming  to  be,  as  was  the  defendant,  a  resident  of 
Boston,  and  also  claiming  to  be  his  lawful  wife;  that  he  had 
failed,  without  just  cause,  to  furnish  suitable  support  for  her 
and  had  deserted  her;  that  she  was  living  apart  from  him  for 
justifiable  cause;  that  she  prayed  that  such  order  be  made 
for  her  support  as  the  court  deemed  expedient;  that  process 
was  duly  issued  out  of  the  said  court  and  served  on  this  de- 
fendant and  he  duly  appeared ;  that  on  or  about  March  21st, 
1895,  on  motion  of  this  defendant,  the  court  ordered  the  plain- 
I  tiff  to  file  in  that  case  full  specifications  as  to  how,  when  and 

I  where  she  became  the  lawful  wife  of  the  defendant;  that  pursu- 

ant to  that  order,  on  or  about  April  1st,  1895,  the  plaintiff 
fiJed  in  the  said  Probate  Court  her  specifications,  wherein  she 
stated  that  she  was  married  to  this  defendant  on  or  about  Oc- 
tober Slst,  1884,  in  Brooklyn,  New  York,  by  John  Courtney, 
£^.,  Justice  of  the  Peace,  and  further  that  a  legal  marriage 
I  according  to  the  laws  of  the  State  of  New  York  was  entered 

I  into  in  that  State  between  her  and  this  defendant  on  or  about 

I  April  15th,  1888,  by  mutual  consent,  consummation,  acknowl- 

edgment and  cohabitation  in  that  State,  and  that  such  consent, 
acknowledgment  and  cohabitation  continued  in  New  York,  and 
also  in  Massachusetts,  from  April  15th,  1888  to  May  30th,  1891, 
at  which  time,  she  alleged,  this  defendant  deserted  her.  She 
also  stated  in  her  petition  in  the  Probate  Court  "  that  her  mar- 
riage with  this  defendant  was  still — ^to  wit,  on  April  1, 1895 — 
of  legal  force  and  effect.    Yet  defendant  deserted  her  on  or 


206  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  8. 

about  May  30;  1891,  and  had  contributed  nothing  to  her 
support  since  that  time."  "Thereafter,"  the  answer  alleged, 
"tiiis  defendant,  according  to  the  course  and  practice  of  the 
said  court,  duly  answered  the  said  petition,  and  admitted 
that  he  and  the  said  petitioner  were  married  on  or  about  Octo- 
ber 30,  1884,  in  Brooklyn,  by  John  Courtney,  Esq.,  Justice  of 
the  Peace,  and  alleged  that  the  said  marriage  had  been  duly 
adjudged  to  be  null  and  void  by  this  court  by  its  judgment 
rendered  April  9th,  1888,  in  the  suit  brought  by  this  defend- 
ant against  the  plaintiff  herein  for  the  purpose  of  having  the 
said  marriage  annulled,  which  is  the  same  judgment  herein- 
before in  this  answer,  and  also  in  the  amended  complaint 
herein  referred  to.  In  respect  to  the  supposed  marriage  be- 
tween this  defendant  and  the  plaintiff  herein — alleged  in  the 
said  specifications  filed  by  the  plaintiff  in  her  said  suit  in 
the  Probate  Court  to  have  taken  place  on  or  about  April  15, 
1888 — this  defendant  answered  that  at  the  time  of  the  said 
marriage  performed  on  or  about  October  30,  1884,  by  John 
Courtney,  Justice  of  the  Peace,  and  both  at  the  time  of  the 
alleged  marriage  stated  in  the  specifications,  filed  by  the  said 
plaintiff,  to  have  taken  place  April  15,  1888,  and  at  all 
other  times  subsequent  to,  as  well  as  long  before  October  30, 
1884,  the  said  plaintiff  was  the  wife  of  one  William  G.  Morri- 
son, and  that  by  reason  thereof  the  said  supposed  marriages 
between  this  defendant  and  the  said  plaintiff  by  her  alleged 
were,  and  each  of  them  was,  null  and  void.  Thereafter  such 
proceedings  were  duly  had  that  the  said  cause  came  on  to  be 
heard  and  was  heard  by  the  said  Probate  Court  upon  the 
issues  raised  as  aforesaid  upon  this  defendant's  said  answer 
to  the  plaintiff's  said  petition,  and  the  said  court  found  the 
said  issues  for  this  defendant,  and  thereupon  made  its  decree 
March  25,  1897,  whereby  the  court  found  and  decided  that 
the  prayer  of  the  plaintiff's  said  petition  should  not  be  granted 
and  adjudged  that  the  said  petition  be  dismissed;  and  that  the 
said  judgment  remains  of  record,  and  in  full  force  and  effect." 
In  her  reply  the  plaintiff,  admitting  that  she  had  instituted 


EVERETT  r.  EVERETT.  207 

215  U.  S.  Statement  of  the  Case. 

in  the  Massachusetts  court  the  action  above  referred  to, 
alleged  that  her  petition  in  that  case  was  one  "for  separate 
maintenance  and  that  the  issues  involved  in  the  present  action 
were  in  nowise  considered  in  that  action  .  .  .  that  said 
petition  was  dismissed  upon  the  understanding  that  in  case  the 
relationship  of  husband  and  wife  should  be  established  be- 
tween the  plaintiff  and  the  defendant  by  said  Supreme  Court, 
and  upon  the  proceedings  pending  therein,  the  petition  for 
separate  support  was  to  be  renewed,  and  said  judgment  of 
said  Probate  Court,  the  County  of  Suffolk,  Commonwealth 
of  Massachusetts,  entered  on  or  about  the  twenty-fifth  day 
of  March,  1897,  did  not  determine  the  questions  at  issue  in 
the  present  proceedings,  and  was  entered  with  leave  to  renew 
the  said  proceedings,  as  hereinbefore  set  forth." 

There  was  a  finding  of  facts  in  the  present  case  by  the  Su- 
preme Court  of  New  York,  one  of  which  was  that  the  plain- 
tiff and  the  defendant  were  duly  married  before  the  Justice 
of  the  Peace  as  above  stated,  and  that  after  such  marriage 
they  lived  and  cohabited  together  as  husband  and  wife  up  to 
June  1st,  1891,  and  that  she  was  never  married  to  any  person 
other  than  the  present  defendant.  The  court,  by  its  final  de- 
cree, set  aside  and  vacated  the  decree  of  April  9th,  1888,  an- 
nulling the  marriage  before  the  Justice  of  the  Peace,  and 
adjudged  that  the  contract  of  marriage  thus  evidenced  .was 
in  full  force  and  effect.  But  that  decree  was  aflSrmed  by  the 
Appellate  Division.  It  is  stated  in  the  opinion  of  the  Court  of 
Appeals  that  there  were  several  trials  and  appeals  in  this  case 
to  the  Appellate  Division.  Everett  v.  Everett,  48  App.  Div. 
475;  75  App.  Div.  369;  89  App.  Div.  619. 

Finally,  the  case  was  carried  to  the  Court  of  Appeals  of 
New  York,  where  the  judgment  was  reversed  February  21st, 
1905,  180  N.  Y.  452,  but,  for  reasons  stated  in  the  opinion 
of  that  court,  the  reversal  was  with  directions  to  dismiss  her 
complaint  upon  the  merits.  That  decree  is  now  here  for  re- 
view. 

It  appears  from  its  opinion  that  the  Court  of  Appeals  of 


208  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

New  York  adjudged  the  decision  in  the  Probate  Court  of 
Massachusetts  to  be  conclusive,  as  between  the  parties,  as  to 
the  question  whether  the  plaintiif  was  the  wife  of  the  defend- 
ant, entitled  to  be  regarded  as  holding  that  relation  to  him. 
The  Court  of  Appeals  of  New  York  said  (p.  459) :  "The  Massa- 
chusetts judgment  was  based  upon  the  petition  of  the  wife 
and  it  was  founded  upon  the  allegation  that  she  was  the 
defendant's  wife ;  that  he  had  deserted  her  and  had  failed  to 
contribute  to  her  support.  These  allegations  of  fact  were 
put  in  issue  by  the  defendant  and  must  have  been  determined 
by  the  court.  An  exemplification  of  the  judgment  record  in 
the  action  which  annulled  the  marriage  was  presented  to  the 
Probate  Court  and  admitted  in  evidence.  The  court  had 
jurisdiction  of  the  parties  and  the  subject-matter  of  the  con- 
troversy, and  its  judicial  power  extended  to  every  material 
question  in  the  proceeding.  The  determination  of  the  court 
that  the  plaintiff  was  not  entitled  to  the  relief  demanded  in 
her  petition  must  be  deemed  to  have  included  the  question 
as  to  the  validity  of  her  marriage.  In  other  words,  the  court 
must  have  determined  the  question  whether  the  petitioner 
was  in  fact  the  defendant's  wife,  and  this  involved  an  inquiry 
with  respect  to  the  question  whether  at  the  time  of  her  mar- 
riage before  the  Justice  of  the  Peace  at  Brooklyn  she  had  an- 
other husband  living.  There  was  evidence  before  the  court 
on  that  question,  since  the  record  of  the  judgment  annulling 
the  marriage  in  this  State  was  before  it.  That  judgment  of  a 
sister  State  was  entitled  in  the  present  action  to  full  faith  and 
credit  under  the  Constitution  of  the  United  States,  any  stat- 
ute, rule  or  procedure  or  even  any  constitutional  provision  in 
any  State,  to  the  contrary  notwithstanding.  The  provision  of 
the  Federal  Constitution  with  respect  to  the  force  and  effect 
to  be  given  to  the  judgments  of  other  States,  and  the  act  of 
Congress  passed  in  pursuance  thereof,  is  the  supreme  law  of 
the  land,  and  any  statute  or  rule  of  practice  in  this  State  that 
would  tend  to  detract  or  take  from  such  a  judgment  the  force 
and  effect  that  it  is  entitled  to  under  the  Federal  Constitution 


EVERETT  V,  EVERETT.  209 

215  U.  S.  Argument  for  Plaintiff  in  Error. 

and  in  the  State  where  rendered  must  be  deemed  to  be  inop- 
erative. So  we  think  that  that  judgment  was  conclusive 
upon  the  parties  to  this  action  with  respect  to  all  the  ques- 
tions which  were  involved  in  the  proceedings  and  decided  by 
the  court,  and  clearly  one  of  those  questions  was  the  status 
of  the  present  plaintiff.  She  alleged  that  she  was  the  defend- 
ant's wife,  and  this  allegation  must  be  deemed  to  have  been 
negatived  by  the  decision  in  the  proceeding." 

The  court,  in  addition,  considered  and  disposed  of  some 
questions  of  a  non-Federal  nature  in  respect  to  which  the 
trial  court  was  held  to  have  erred.  But  it  thus  concluded  its 
opinion  (p.  464):  "There  are  many  other  questions  in  this 
case  which  have  been  discussed  at  length  upon  the  argument 
and  are  to  be  found  in  the  briefs  of  the  respective  counsel, 
but  it  is  unnecessary  to  consider  them.  We  think  that  the 
judgment  must  be  reversed,  and  as  there  appears  to  be  at 
least  one  conclusive  obstacle  to  the  plaintiff's  success,  a  new 
trial  would  be  useless,  and  so  the  complaint  should  be  dis- 
missed upon  the  merits."  The  one  conclusive  obstacle  thus 
found  to  be  in  the  plaintiff's  way  was  the  judgment  of  the 
Massachusetts  court  in  the  action  brought  by  the  plaintiff  in 
error  against  the  defendant  in  error. 

Mr.  Frank  H.  Stewart,  for  plaintiff  in  error,  submitted : 
The  dismissal  of  the  complaint  by  the  state  court  was  upon 
the  ground  that  the  action  of  the  probate  court  in  Massachu- 
setts was  a  "conclusive  obstacle"  to  the  plaintiff's  success. 
This  involved  the  determination  of  the  effect  in  Massachu- 
setts of  the  action  of  said  probate  court,  in  accordance  with 
§  1,  Art.  IV,  of  the  Constitution  and  of  §  905,  Rev.  Stat.  See 
Mills  V.  Dvryee,  7  Cranch,  481;  McElmoyle  v.  Cohen,  13  Pet. 
312,  326;  Crapo  v.  Kdly,  16  Wall.  610,  619. 

The  determination  by  the  courts  of  one  State  of  the  effect  to 
be  given  to  the  judicial  proceedings  of  a  sister  State  is  open  to 
review  by  this  court  upon  writ  of  error.  Huntington  v.  AttrUl, 
146  U.  S.  657. 

VOL.  ccxv — 14 


210  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 

Particularly  when  the  highest  court  of  a  State  has  decided 
against  the  effect  which  it  was  claimed  proceedings  in  another 
State  had  by  the  law  and  usage  of  that  State.  Green  v.  Van 
Buskirk,  7  Wall.  145.  See  also  Andrews  v.  Andrews,  188  U.  S. 
28;  Crapo  v.  KeUy,  16  Wall.  621;  GL  West.  Tel.  Co.  v.  Purdy, 
162  U.  S.  335;  Huntington  v.  AttriU,  146  U.  S.  684;  Harding  v. 
Harding,  198  U.  S.  325. 

That  in  the  present  case  the  New  York  court  has  given  too 
great  effect  to  the  Massachusetts  proceedings,  instead  of  too 
little,  does  not  render  its  decision  any  the  less  reviewable  by 
this  court.  Board  of  Pub.  Works  v.  Columbia  College,  17  Wall. 
521,  529;  Wood  v.  Watkinson,  17  Connecticut,  500,  505;  Suy- 
dam  V.  Barber  et  al.,  18  N.  Y.  468,  472;  Warrington  v.  Bail,  90 
Fed.  Rep.  464. 

The  state  court  erred  in  determining  that  the  effect  of  the 
judicial  proceedings  in  the  probate  court  of  Massachusetts  was 
to  render  res  jvdicaia  the  issue  raised  by  the  complainant  in 
this  case. 

The  issue  in  this  case  is  one  which  the  probate  court  of 
Massachusetts  did  not  and  could  not  pass  upon  by  actual  de- 
cree, or  affect  by  the  legislative  part  of  that  decree.  See 
Statutes  of  Massachusetts,  chap.  153,  §  33. 

The  issue  in  this  case  was  not  rendered  res  judicata  by  the 
judicial  proceedings  in  Massachusetts. 

It  was  not  a  fact  which  was,  or  could  have  been,  litigated  or 
decided  in  Massachusetts.    See  Kerr  v.  Kerr,  41  N.  Y.  272. 

The  issue  of  this  case  was  not  a  matter  necessary  to  be  de- 
termined by  the  Massachusetts  probate  court  in  the  action 
taken  by  it. 

The  pc^tition  was  simply  dismissed.  The  ground  for  dis- 
missal may  have  been  any  one  of  the  grounds  set  up.  There  is 
nothing  in  the  record  to  show  that  thfe  Massachusetts  court 
did  not  reach  its  result  on  some  ground  other  than  that  which, 
it  is  contended,  renders  that  result  res  judicata. 

It  cannot  therefore  be  held,  upon  the  face  of  the  record,  that 
there  was  identity  of  issues  and  resulting  res  judicata.    Vrrdauf 


EVERETT  V.  EVERETT.  211 

215  U.  S.  Argument  for  Plaintiff  in  Error. 

V,  Undauf,  117  lUinois,  584;  and  see  Harding  v.  Harding,  198 
U.  S.  337,  338. 

It  is  clearly  the  law  of  Massachusetts;  of  New  York,  and  the 
general  law  that,  when  a  general  result  may  have  been  reached 
by  the  determmation  of  any  undeterminate  one  of  several 
facts,  no  particular  fact  is  conclusively  determined.  Stannard 
V.  HubbeU,  123  N.  Y.  520;  House  v.  Lochwood,  137  N.  Y.  259; 
Stokes  V.  Foote,  172  N.  Y.  327,  342;  Burlen  v.  Shannon,  99 
Massachusetts,  200;  Ltea  v.  Lea,  99  Massachusetts,  493;  Foye 
v.  Patch,  132  Massachusetts,  105,  111;  Stone  v.  Addy,  168 
Massachusetts,  26. 

The  issue  of  this  case  was  not  in  fact  a  matter  determined  by 
the  Massachusetts  probate  court. 

The  burden  of  proof  was  upon  the  husband,  for  it  is  the  de- 
fendant who  sets  up  the  estoppel.  Vaughn  v.  O'Brien,  57 
Barb.  491,  495;  Foye  v.  Paich,  132  Massachusetts,  105,  111; 
Cromwell  v.  Sack,  94  U.  S.  351. 

The  issue  in  this  case  was  not  rendered  res  judicata  because 
the  alleged  decree  in  Massachusetts  did  not  import  a  decree  on 
the  merits. 

The  entry  in  the  Massachusetts  probate  court,  "Petition 
Dismissed  "  does  not  necessarily  import  a  decree  on  the  merits. 
And  a  consideration  of  the  extrinsic  evidence  shows  that  there 
was  a  voluntary  dismissal  on  the  part  of  the  wife  at  a  time 
when  she  had  a  perfect  right  to  dismiss  her  petition,  which  dis- 
missal was  acquiesced  in  by  the  husband  and  permitted  by  the 
court.  The  mere  fact  that  the  court  did  not  see  fit  to  grant  her 
request  that  the  decree  should  contain  the  customary  technical 
words  "without  prejudice"  is  not  conclusive  upon  her  rights. 
Lanphier  v.  Desmond,  187  Illinois,  382;  Haldeman  v.  United 
Stales,  91  U.  S.  584. 

And,  since  the  decree  purported  only  to  deny  to  the  wife 
affirmative  relief,  it  did  not  bar  a  new  application  on  her  part 
for  separate  maintenance.  Budcman  v.  Phelps,  6  Massachu- 
setts, 448;  Pettee  v.  Wilmarth,  5  Allen,  144. 

For  the  Court  of  Appeals  to  hold  the  contrary  was  to  deny 


212  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  Error.  215  U.  S. 

to  the  Massachusetts  decree  the  effect  which  the  wife  claimed 
it  had  by  law  and  usage  in  Massachusetts. 

The  issue  in  the  present  case  arises  on  a  different  state  of 
facts  from  the  facts  upon  which  the  Massachusetts  proceedings 
were  predicated. 

Mr.  George  Zabriskie  for  defendant  in  error: 

In  a  suit  of  this  character  it  is  necessary  in  New  York,  as 
well  as  in  the  Federal  courts,  and  elsewhere  to  allege  and  prove 
two  distinct  things:  first,  that  the  party  complaining  had  a 
good  defense  on  the  merits  to  the  claim  upon  which  the  judg- 
ment impeached  was  rendered;  and  second,  that  he  was  pre- 
vented from  availing  himself  of  that  defense  by  the  fraud  of 
the  other  party.  2  Story,  Equity,  §  885a;  Blank  v.  Blank,  107 
N.  Y.  91;  Whittlesey  v.  Delaney,  73  N.  Y.  571;  Kimberly  v. 
Arms,  40  Fed.  Rep.  548;  White  v.  Crow,  110  U.  S.  183;  AbU- 
man  v.  Roth,  12  Wisconsin,  81 ;  Dobbs  v.  St.  Joseph  Fire  Ins. 
Co.,  72  Missouri,  189;  Williams  v.  NoUm,  58  Texas,  708. 

The  judgment  of  the  Court  of  Appeals  proceeded  upon  two 
grounds,  of  which  at  least  one  presents  no  Federal  question. 

The  judgment  of  the  Court  of  Appeals  rests  quite  as  much 
upon  their  determination  of  the  issue  of  fraud,  which  involves 
no  Federal  question. 

In  such  a  case  this  court  will  not  assume  jurisdiction.  Allen 
V.  Arguimbau,  198  U.  S.  149;  Dibble  v.  BeUingham  Bay  Land 
Co.,  163  U.  S.  63;  Johnson  v.  Risk,  137  U.  S.  300;  Klir^er  v. 
Missouri,  13  Wall.  257. 

No  Federal  question  is  involved. 

A  right,  privilege  or  immunity  claimed  under  the  Consti- 
tution must,  under  clause  3  of  §  709  of  the  Revised  Statutes 
of  the  United  States,  be  claimed  in  the  court  below  by  the 
party  seeking  the  advantage  of  it.  Johnson  v.  N.  Y.  Life  Ins. 
Co.,  187  U.  S.  491,  495;  Eastern  Building  &  Loan  Assn.  v.  Wil- 
liamson, 189  U.  S.  122;  Glenn  v.  Garth,  147  U.  S.  360;  Lloyd  v. 
Matthews,  155  U.  S.  222. 

Where  the  plaintiff  in  error  claims  merely  that  the  state 


EVERETT  V.  EVERETT.  213 

215  U.  S.  Argument  for  Defendant  in  Error. 

court  erroneously  construed  the  judgment  of  a  court  of  another 
State,  without  denjdng  that  the  state  court  gave  to  the  judg- 
ment the  effect  which  such  construction  warrants,  there  is  no 
question  of  faith  and  credit  involved  which  this  court  has 
jurisdiction  to  review.  AUen  v.  AUeghany  Company,  192  U.  S. 
458;  Finney  v.  Guy,  189  U.  S.  335;  Johnson  v.  N,  F.  Life  Ins. 
Co.,  187  U.  S.  491;  Banholzer  v.  N.  Y.  Life  Ins.  Co.,  178  U.  S. 
402;  Lloyd  v.  MaUhews,  155  U.  S.  222;  Glenn  v.  Garth,  147  U.  S. 
360. 

If  upon  any  groimd  this  court  have  jurisdiction,  the  judg- 
ment of  the  state  court  upon  the  plea  of  res  jvdicaia  is  right. 

A  final  decree  of  a  court  of  competent  jurisdiction,  upon  the 
merits  of  the  cause,  is  conclusive  between  the  parties  upon  the 
material  matters  thereby  necessarily  determined.  Embury  v. 
Connor,  3  N.  Y.  511,  552;  Dobson  v.  Pearce,  12  N.  Y.  156;  Prey 
V.  Hegeman,  98  N.  Y.  351 ;  Griffin  v.  Long  Island  R.  R.  Co.,  102 
N.  Y.  449. 

Such  being  the  ordinary  rule  of  law  there  is  no  evidence  in 
the  record  to  indicate  that  in  Massachusetts  the  decree  of  the 
probate  court  would  be  accorded  any  other  or  different  faith 
or  credit. 

In  ascertaining  what  credit  is  given  to  judicial  proceedings 
in  the  State  where  they  took  place,  this  court  is  limited  to  the 
evidence  on  that  subject  before  the  court  whose  judgment  is 
under  review.    TUt  v.  Kelsey,  207  U.  S.  43, 57. 

The  conclusiveness  of  the  decree  is  not  impaired  by  the  fact 
that  the  cause  of  action  in  the  suit  in  which  the  judgment  was 
rendered  is  different  from  the  cause  of  action  in  the  suit  at  bar. 
Doty  V.  Brown,  4  N.  Y.  71;  Lythgoe  v.  Lythgoe,  75  Hun,  147; 
S.C.,  145N.Y.641. 

In  such  instances  the  judgment  is  conclusive  as  to  those 
matters  in  issue  upon  the  determination  of  which  the  finding  or 
verdict  was  actually  rendered.  Cromwell  v.  County  of  Sac,  94 
U.  S.  351, 352,  353;  Southern  Pacific  R.  R.  Co.  v.  United  States, 
168  U.  S.  1,  48,  49;  BeU  v.  MerrifiM,  109  N.  Y.  202,  211. 

The  form  of  the  proceeding  does  not  effect  the  conclusive- 


214  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

ness  of  the  decree.  The  efficacy  of  the  judicial  determination 
attaches  no  less  to  summary,  special  or  statutory  proceedings, 
than  to  actions.  Cuirass  v.  Gibbons,  130  N.  Y.  447;  Reich  v. 
Cochran,  151  N.  Y.  122;  Smith  v.  Zdinski,  94  N.  Y.  519; 
Matter  of  Livingston,  34  N.  Y.  555. 

The  sufficiency  of  the  proof  upon  which  the  court  acted  is 
not  open  to  consideration  where  the  judgment  is  pleaded  as  a 
bar  or  is  relied  on  as  evidence;  otherwise  the  judgment  would 
not  be  conclusive,  and  there  could  be  no  such  thing  as  res 
judicata.  Crescent  Live  Stock  Co.  v.  Butchers'  Union,  120  U.  S. 
141,  159;  DeposU  Bank  v.  Frankfort,  191  U.  S.  449,  510; 
Grignon's  Lessee  v.  Astor,  2  How.  319,  339;  Comstock  v.  Craw- 
ford, 3  Wall.  396,  406. 

Mr.  Justice  Harlan,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

We  have  no  concern  about  the  disposition  made  by  the 
state  court  of  questions  of  mere  local  law,  and  have  only  to 
inquire  whether,  as  required  by  the  Constitution  of  the  United 
States,  it  gave  full  faith  and  credit  to  the  proceedings  had  in 
the  Probate  Court  in  Massachusetts.  Const.,  Art.  IV,  §  1.  K 
it  did,  the  judgment  must  be  affirmed;  otherwise,  reversed. 
That  the  proceedings  in  the  latter  court  were  judicial  in  their 
nature,  and  that  the  New  York  court  intended  to  give  them 
full  faith  and  credit,  cannot  be  doubted.  The  Probate  Court 
is  a  court  of  record,  established  by  the  General  Court  of  Massa- 
chusetts under  the  authority  of  the  constitution  of  that  Com- 
monwealth. Const.  Mass.  1822;  Pub.  Stat.  Mass.  1882,  p. 
871,  c.  156.  It  has  jurisdiction  when  a  wife  for  justifiable 
cause  is  actually  living  apart  from  her  husband  to  make  such 
order  as  it  deems  expedient  concerning  her  support.  Ibid. 
And  when  it  has  jurisdiction  of  the  parties  and  subject- 
matter  its  decree,  until  reversed  or  modified,  is  as  conclusive 
in  Massachusetts  as  the  judgments  of  other  courts  there. 
Watts  V.  Waits,  160  Massachusetts,  464;  Langhton  v.  Atkins, 
1  Pick.  535;  Dublin  v.  Chaboum,  16  Massachusetts,  433. 


EVERETT  v.  EVERETT.  215 

215  U.  S.  Opinion  of  the  Court. 

In  the  suit  in  Massachusetts  the  fundamental  fact  was  put 
in  issue  as  to  whether  the  plaintiff  was  the  wife  of  the  defend- 
ant and  entitled,  as  such,  to  sue  for  support  while  living  apart 
from  her  alleged  husband.  The  New  York  court  adjudged 
that,  as  between  the  parties,  and,  so  far  as  the  question  be- 
fore us  is  concerned,  that  fact  had  been  determined  by  the 
Massachusetts  court  adversely  to  the  plaintiff;  for,  the  latter 
court  ruled,  after  hearing  the  parties,  that  the  relief  asked 
from  it  should  not  be  granted  and  dismissed  the  plaintiff's 
petition.    So  reads  the  record  of  the  Massachusetts  court. 

It  is  said,  however,  that  for  aught  that  appears  from  the 
record  of  the  Probate  Court,  as  produced  herein,  that  court 
may  have  declined  to  grant  the  relief  asked  by  the  alleged 
wife  without  considering  at  all  the  fact  of  her  marriage,  but 
only  on  the  ground  that  she  was  hving  apart  from  the  defend- 
ant without  justifiable  cause.  But  the  answer  to  this  con- 
tention is  that  the  question  whether  the  plaintiff  was  the 
lawful  wife  of  the  defendant,  as  well  as  the  question  whether 
she  was  entitled  to  separate  maintenance  while  living  apart 
from  her  alleged  husband,  were  in  issue  in  the  Probate  Court, 
and  if,  in  order  to  prove  that  the  court  below  gave  undue 
faith  and  credit  to  the  Massachusetts  judgment,  the  plaintiff 
was  entitled  to  show  by  oral  testimony  that  there  was  really 
no  dispute  in  the  Probate  Court  as  to  the  fact  of  her  being  the 
wife  of  the  defendant,  and  that  the  only  actual  dispute  at  the 
hearing  was  whether  she  had  justifiable  cause  for  living  apart 
from  him,  no  such  proof  appears  to  have  been  made  by  her. 
No  bill  of  exceptions  as  to  the  evidence  in  the  Probate  Court 
seems  to  have  been  taken,  and  we  have  before  us  only  a  record 
showing  that  the  plaintiff,  claiming  to  be  the  wife  of  the  de- 
fendant herein,  sued  for  separate  maintenance  and  support, 
alleging  that  she  was  living  apart  from  him  for  justifiable 
cause,  and  that  the  relief  asked  was  denied  and  her  petition 
dismissed  without  any  statement  of  the  specific  grounds  on 
which  the  court  proceeded  and  without  any  qualifying  words 
indicating  that  the  decree  was  otherwise  than  upon  the  merits 


216  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  8. 

as  to  the  issues  made.  We  concur  with  the  Court  of  Appeals 
<rf  New  York  in  holding  that  as  the  Probate  Court  had  juris- 
diction of  the  parties  and  the  subject-matter,  its  judgment, 
rendered  after  hearing,  that  the  plaintiff  was  not  entitled  to 
the  relief  demanded  by  her  and  that  her  petition  be  dismissed, 
it  must  be  taken,  upon  the  record  of  this  case,  that  the  latter 
court  determined  against  the  plaintiff  the  fact  of  her  being 
the  wife  of  the  defendant  at  the  time  she  sought  separate 
maintenance  and  support. 

It  is  doubtful  whether  the  plaintiff,  in  her  pleadings  or 
otherwise,  sufficiently  asserted  any  right  belonging  to  her 
under  the  Constitution  of  the  United  States.  But  if  it  were 
assumed  that  she  did,  the  result,  even  upon  that  hypothesis, 
is  that,  upon  the  present  showing  by  the  plaintiff,  there  is  no 
substantial  ground  to  contend  that  the  court  below  did  not 
give  such  faith  and  credit  to  the  judgment  of  the  Probate 
Court  of  Massachusetts  as  were  required  by  the  Constitution, 
and,  therefore,  this  court  has  no  authority  to  review  the  final 
judgment  of  the  New  York  court.    The  writ  of  error  must  be 

dismissed. 

//  is  so  ordered. 


BALTIMORE   AND   OHIO    RAILROAD   COMPANY   v. 
INTERSTATE  COMMERCE  COMMISSION. 

ON   CERTIFICATE   FROM   THE   CIRCUFF   COURT   OF  THE    UNrTED 
STATES  FOR  THE   DISTRICT   OF  MARYL.^J^D. 

No.  339.    Argued  October  15, 18,  1909.— Decided  December  6, 1909. 

Only  distinct  points  of  law  that  can  be  distinctly  answered  without 
regard  to  other  issues  can  be  certified  to  this  court  on  division  of 
opinion:  the  whole  case  cannot  be  certified  even  when  its  decision 
turns  upon  matter  of  law  only. 

Appellate  jurisdiction  implies  the  determination  of  the  case  by  an 
inferior  court,  and  the  transfer  of  the  case  to  the  appellate  court 
without  such  determination  amounts  to  giving  the  appellate  court 
original  jurisdiction. 


B.  &  O.  R.  R.  V.  INTERSTATE  COMM.  COMM.    217 
215  U.  S.  Statement  of  the  Case. 

* 

Congress  cannot  extend  the  original  jurisdiction  of  this  court  beyond 
that  prescribed  by  the  Constitution;  and  an  act  providing  for 
certifying  questions  of  law  will  not  be  construed  as  permitting 
certification  of  the  entire  case  before  any  judgment  has  been  ren- 
dered below. 

Under  §  1  of  the  expediting  act  of  February  11,  1903,  c.  544,  32  Stat. 
823,  the  case,  although  turning  only  on  a  point  of  law  cannot  be 
certified  to  this  court,  in  absence  of  any  judgment,  opinion,  de- 
cision, or  order  determinative  of  the  case  below. 

This  was  a  bill  in  equity  filed  by  the  Baltimore  and  Ohio 
Railroad  Company  in  the  Circuit  Court  of  the  United  States 
for  the  District  of  Maryland  against  the  Interstate  Com- 
merce Commission,  July  20,  1908,  which  prayed  for  a  pre- 
liminary injunction  and  a  final  decree  enjoining,  annulUng 
and  suspending  a  certain  order  of  the  commission  served 
June  24,  1908,  in  a  proceeding  before  the  commission  entitled 
"Rail  and  River  Coal  Company  vs,  Baltimore  and  Ohio  Rail- 
road Company." 

On  July  27,  1908,  the  Attorney-General,  in  compliance 
with  §  16  of  the  act  to  regulate  commerce,  as  amended  by 
the  act  of  June  29,  1906,  filed  in  the  court  the  certificate  of 
general  public  importance  under  the  expedition  act  of  Fel> 
ruary  11,  1903.  In  accordance  with  the  provisions  of  the 
act  of  February  11,  1903,  the  two  Circuit  Judges,  by  order 
filed  August  26,  1908,  designated  the  Honorable  Thomas  J. 
Morris,  District  Judge  for  the  District  of  Maryland,  to  sit 
with  them  on  the  hearing  and  disposition  of  the  case. 

The  application  for  the  preliminary  injunction  was  set  for 
hearing  September  22,  1908.  Defendant's  answer  was  filed 
September  19,  1908.  By  order  entered  September  23,  1908, 
the  application  for  the  preliminary  injunction  was  denied. 

Replication  was  filed  and  testimony  taken,  and,  there  be- 
ing no  substantial  dispute  as  to  the  facts,  Mr.  Arthur  Hale, 
complainant's  general  superintendent  of  transportation,  and 
also  chairman  of  the  car  efficiency  committee  of  the  Americar 
Railway  Association,  was  able  to  testify  as  to  all  matters 


218  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

that  counsel  deemed  necessary  to  bring  to  the  court's  atten- 
tion, and  was  the  only  witness. 

December  14,  1908,  the  cause  came  on  for  final  hearing, 
and  was  argued  before  the  two  Circuit  Judges  and  the  Dis- 
trict Judge  designated  by  them.  No  final  decree  or  judg- 
ment was  entered,  but  the  presiding  judge  entered  the  fol- 
lowing order: 

"This  cause  came  on  this  day  to  be  further  heard,  and  was 
argued  by  counsel,  and  the  court  having  fully  considered 
the  bill,  answer,  deposition  and  other  papers  filed  herein, 
the  judges  sitting  finding  themselves  divided  in  opinion  as 
to  the  decree  that  should  be  entered  herein, 

"It  is  now  ordered,  that  in  accordance  with  the  act  of 
Congress  applicable  hereto,  that  this  case  be  certified  for 
review  to  the  Supreme  Court  of  the  United  States. 

"December  14,  1908.'' 

The  cause  was  docketed  in  this  court  and  the  transcript 
of  record  filed  January  25,  1909,  as  "On  a  certificate  from 
the  Circuit  Court  of  the  United  States  for  the  District  of  Mary- 
land." 

The  act  of  Congress  of  February  11,  1903,  c.  544,  32  Stat. 
823,  contains  two  sections,  as  follows: 

"(1)  That  in  any  suit  in  equity  pending  or  hereafter 
brought  in  any  Circuit  Court  of  the  United  States  under  the 
act  entitled  'An  act  to  protect  trade  and  commerce  against 
unlawful  restraints  and  monopolies,'  approved  July  second, 
eighteen  hundred  and  ninety,  'An  act  to  regulate  commerce/ 
approved  February  fourth,  eighteen  hundred  and  eighty- 
seven,  or  any  other  acts  having  a  like  purpose  that  hereafter 
may  be  enacted  wherein  the  United  States  is  complainant, 
the  Attorney-General  may  file  with  the  clerk  of  such  court 
a  certificate  that,  in  his  opinion,  the  case  is  of  general  public 
importance,  a  copy  of  which  shall  be  immediately  furnished 
by  such  clerk  to  each  of  the  circuit  judges  of  the  circuit  in 
which  the  case  is  pending.  Thereupon  such  case  shall  be 
given  precedence  over  others  and  in  every  way  expedited, 


B.  A  O.  R.  R.  V.  INTERSTATE  COMM,  COMM.    219 
215  U.  S.  Statement  of  the  Case. 

and  be  assigned  for  hearing  at  the  eariiest  practicable  day, 
before  not  less  than  three  of  the  circuit  judges  of  said  cir- 
cuit, if  there  be  three  or  more;  and  if  there  be  not  more  than 
two  circuit  judges,  then  before  them  and  such  district  judge 
as  they  may  select.  In  the  event  the  judges  sitting  in  such 
case  shall  be  divided  in  opinion,  the  case  shall  be  certified 
to  the  Supreme  Court  for  review  in  like  manner  as  if  taken 
there  by  appeal  as  hereinafter  provided. 

"Sec.  2.  That  in  every  suit  in  equity  pending  or  hereafter 
brought  in  any  Circuit  Court  of  the  United  States  under  any 
of  said  acts,  wherein  the  United  States  is  complainant,  in- 
cluding cases  submitted  but  not  yet  decided,  an  appeal  from 
the  final  decree  of  the  Circuit  Court  will  lie  only  to  the  Su- 
preme Court  and  must  be  taken  within  sixty  days  from  the 
entry  thereof:  Provided,  That  in  any  case  where  an  appeal 
may  have  been  taken  from  the  final  decree  of  the  Circuit 
Court  to  the  Circuit  Court  of  Appeals  before  this  act  takes 
effect,  the  case  shall  proceed  to  a  final  decree  therein,  and  an 
appc^  may  be  taken  from  such  decree  to  the  Supreme  Court 
in  the  manner  now  provided  by  law." 

Section  16  of  the  Hepburn  Act,  so  called,  of  June  29,  1906, 
c.  3591,  34  Stat.  584,  592,  provides: 

"The  venue  of  suits  brought  in  any  of  the  Circuit  Courts 
of  the  United  States  against  the  commission  to  enjoin,  set 
aside,  annul,  or  suspend  any  order  or  requirement  of  the 
commission  shall  be  in  the  district  where  the  carrier  against 
whom  such  order  or  requirement  may  have  been  made  has 
its  principal  operating  ofiice,  and  may  be  brought  at  any 
time  after  such  order  is  promulgated. 

"The  provisions  of  'An  act  to  expedite  the  hearing  and 
determination  of  suits  in  equity,  and  so  forth,'  approved 
February  eleventh,  nineteen  hundred  and  three,  shall  be, 
and  are  hereby,  made  applicable  to  all  such  suits,  including 
the  hearing  on  an  application  for  a  preliminary  injunction, 
and  are  also  made  applicable  to  any  proceeding  in  equity  to 


220  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  XT.  8. 

enforce  any  order  or  requirement  of  the  commission,  or  any 
of  the  provisions  of  the  act  to  regulate  commerce,  approved 
February  fourth,  eighteen  hundred  and  eighty-«even,  and 
all  acts  amendatory  thereof  or  supplemental  thereto.  It  shall 
be  the  duty  of  the  Attorney-General  in  every  such  case  to  file 
the  certificate  provided  for  in  said  expediting  act  of  Febru- 
ary eleventh,  nineteen  hundred  and  three,  as  necessary  to 
the  application  of  the  provisions  thereof,  and  upon  appeal 
as  therein  authorized  to  the  Supreme  Court  of  the  Umted 
States,  the  case  shall  have  in  such  court  priority  in  hearing 
and  determination  over  all  other  causes  except  criminal 
causes.  ...  An  appeal  may  be  taken  from  any  inter- 
locutory order  or  decree  granting  or  continuing  an  injunction 
in  any  suit,  but  shall  lie  only  to  the  Supreme  Court  of  the 
United  States :  Provided  further,  That  the  appeal  must  be 
taken  within  thirty  dajrs  from  the  entry  of  such  order  or 
decree  and  it  shaU  take  precedence  in  the  appellate  court 
over  all  other  causes,  except  causes  of  like  character  and  crim- 
inal causes." 

Afr.  W.  Irvine  Cross  and  Mr.  Hugh  L.  Bond,  Jr.,  with 
whom  Mr.  W.  Ainsworth  Parker  was  on  the  brief,  for  the 
Baltimore  and  Ohio  Railroad  Company. 

Mr.  Wade  H.  EUis,  Assistant  to  the  Attorney-General,  with 
whom  Afr.  Luther  M.  Walter  and  Afr.  Orla  E.  Harrison, 
Special  Assistants  to  the  Attorney-General,  were  on  the  brief, 
for  the  Interstate  Commerce  Commission. 

Mr.  Chief  Justice  Fuller,  after  making  the  foregoing 


statement,  delivered  the  opinion  of  the  court. 

By  the  Judiciary  Act  of  March  3,  1891,  a  review  by  certifi- 
cate is  limited  to  the  certificate  or  its  equivalent  by  the  Cir- 
cuit Courts,  made  after  final  judgment,  of  the  question,  when 
raised,  of  their  jurisdiction  as  courts  of  the  United  States, 


B.  &  O.  R.  R.  t>.  INTERSTATE  COMM.  COMM.    221 
21£  U.  S.  Opiztion  of  the  Court. 

and  to  the  certificate  by  the  Circuit  Courts  of  Appeal  of 
questions  of  law  in  relation  to  which  the  advice  of  this  court 
is  sought  as  therein  provided,  which  certificates  are  governed 
by  the  same  rules  as  were  formerly  appUed  to  certificates  of 
division.  United  States  v.  Rider,  163  U.  S.  132;  The  Paquete 
Habana,  175  U.  S.  677,  684;  Chicago,  Burlington  &  Quincy 
Railway  Company  v.  Williams,  205  U.  S.  444.  And  it  has 
been  established  by  repeated  decisions  that  questions  certi- 
fied to  this  court  upon  a  division  of  opinion  must  be  distinct 
points  of  law  clearly  stated  so  that  they  can  be  distinctly 
answered  without  regard  to  other  issues  of  law  or  of  fact; 
and  not  questions  of  fact  or  of  mixed  law  and  fact  involving 
inferences  of  fact  from  particular  facts  stated  in  the  certifi- 
cates; nor  yet  the  whole  case  even  if  divided  into  several 
pomts.    Jeivdl  v.  Knight,  123  U.  S.  426,  433. 

And  finally  it  has  been  settled  that  the  whole  case,  even 
when  its  decision  turns  upon  matter  of  law  only,  cannot 
be  sent  here  by  certificate  of  division. 

In  White  v.  Turk,  12  Pet.  238,  H  was  said:  ''The  certificate 
of  the  judges,  in  this  case,  leaves  no  doubt  that -the  whole 
cause  was  submitted  to  the  Circuit  Court,  by  the  motion  to 
set  aside  the  judgment  on  the  bond.  And,  had  the  court 
agreed  in  opinion,  and  rendered  a  judgment  upon  the  points 
submitted ;  it  would  have  been  conclusive  of  the  whole  matter 
in  controversy  between  the  parties.  This  certificate,  there- 
fore, brings  the  whole  cause  before  this  Court;  and,  if  we  were 
to  decide  the  questions  presented,  it  would,  in  effect,  be  the 
exercise  of  original,  rather  than  appellate  jurisdiction."  This 
practice  was  declared  irregular  by  Chief  Justice  Taney  in  Web- 
ster V.  Cooper,  10  How.  54,  and  the  Chief  Justice  added  that  it 
"  would,  if  sanctioned,  convert  this  court  into  one  of  original 
jurisdiction  in  questions  of  law,  instead  of  being,  as  the  Con- 
stitution intended  it  to  be,  an  appellate  court  to  revise  the 
decisions  of  inferior  tribunals."  So  Mr.  Justice  Miller,  in 
United  States  v.  Perrin,  131  U.  S.  55,  58,  said: 

"But  it  never  was  designed  that,  because  a  case  is  a  trouble- 


222  OCTOBER  TERM,  1909. 

Opimon  of  the  Court.  215  XT.  S. 

some  one,  or  is  a  new  one,  and  because  the  judges  trying  the 
case  may  not  be  perfectly  satisfied  as  regards  all  the  points 
raised  in  the  course  of  the  trial,  the  whole  matter  shall  be 
referred  to  this  court  for  its  decision  in  advance  of  the  regu- 
lar trial,  or  that,  in  any  event  the  whole  case  shall  be  thus 
brought  before  this  court. 

"Such  a  sjrstem  converts  the  Supreme  Court  into  a  nisi 
jjrius  trial  court;  whereas,  even  in  cases  which  come  here  for 
review  in  the  ordinary  course  of  judicial  proceeding,  we  are 
always  and  only  an  appellate  court,  except  in  the  limited 
class  of  cases  where  the  court  has  original  jurisdiction." 

Without  discussing  the  evolution  of  the  use  of  certificates 
reference  to  the  legislation  given  below  may  be  profitable.* 

*  Section  6  of  the  ''  Act  to  amend  the  judicial  system  of  the  United 
States,"  April  29,  1802,  c.  31,  2  Stat.  156,  159,  provided: 

"That  whenever  any  question  shall  occur  before  a  Circuit  Court, 
upon  which  the  opinions  of  the  judges  shall  be  opposed,  the  point  upon 
which  the  disagreement  shall  happen,  shall,  during  the  same  term, 
upon  the  request  of  either  party,  or  their  counsel,  be  stated  under  the 
direction  of  the  judges,  and  certified  under  the  seal  of  the  court,  to 
the  Supreme  Court,  at  their  next  session  to  be  held  thereafter^  and 
shall,  by  the  said  court,  be  finally  decided.  And  the  decision  of  the 
Supreme  Court,  and  their  order  in  the  premises,  shall  be  remitted 
to  the  Circuit  Court,  and  be  there  entered  of  record,  and  shall  have 
effect  according  to  the  nature  of  the  said  judgment  and  order:  Pro» 
vided,  That  nothing  herein  contained  shall  prevent  the  cause  from 
proceeding,  if,  in  the  opinion  of  the  court,  further  proceedings  can  be 
had  without  prejudice  to  the  merits.    .     .    ." 

This  act  was  superseded  by  that  of  June  1,  1872,  c.  255,  17  Stat. 
196,  which  provided: 

''That  whenever,  in  any  suit  or  proceeding  in  a  Circuit  Court  of 
the  United  States,  being  held  by  a  justice  of  the  Supreme  Court  and 
the  circuit  judge  or  a  district  judge,  or  by  the  circuit  judge  and  a 
district  judge,  there  shall  occur  any  difference  of  opinion  between  the 
judges  as  to  any  matter  or  thing  to  be  decided,  ruled,  or  ordered  by 
the  court,  the  opinion  of  the  presiding  justice  or  the  presiding  judge 
shall  prevail,  and  be  considered  the  opinion  of  the  court  for  the  time 
being;  but  when  a  final  judgment,  decree,  or  order  in  such  suit  or 
proceeding  shall  be  entered,  if  said  judges  shall  certify,  as  it  shall  be 


B.  &  O.  R.  R.  V.  INTERSTATE  COMM.  COMM.    223 
215  U.  S.  Opinion  of  the  Ck>urt. 

In  the  present  case  no  final  judgment  or  decree  or  order 
determinative  of  the  merits  was  rendered,  but  the  court  or- 
dered "that  this  case  be  certified  for  review  to  the  Supreme 
Court  of  the  United  States,"  and  that  "a  transcript  of  the 
record  and  proceedings  of  the  cause  aforesaid,  together  with 
all  things  thereunto  relating,  be  transmitted  to  the  said 
Supreme  Court  of  the  United  States;  and  the  same  is  trans- 
mitted accordingly." 

The  act  of  Congress  of  February  11,  1903,  provided  in  its 
first  section  that  on  the  certificate  of  the  Attorney-General 
the  case  should  be  assigned  for  hearing  before  not  less  than 

their  duty  to  do  if  such  be  the  fact,  that  they  differed  in  opinion  as  to 
any  question  which,  under  the  act  of  Congress  of  April  twenty-ninth, 
eighteen  hundred  and  two,  might  have  been  reviewed  by  the  Supreme 
Court  on  certificate  of  difference  of  opinion,  then  either  party  may 
remove  said  final  judgment,  decree,  or  order  to  the  Supreme  Court, 
on  writ  of  error  or  appeal,  according  to  the  nature  of  the  case,  and 
subject  to  the  provisions  of  law  applicable  to  other  writs  of  error  or 
appeals  in  regsurd  to  bail  and  supersedeas." 

That  was  carried  forward  in  1874,  by  §§  050,  652,  654,  693  and  697 
of  the  Revised  Statutes.  Section  6  of  the  Judiciary  Act  of  March  3, 
1891,  c.  517«  26  Stat.  826,  828,  provided: 

"Sec.  6.  .  .  .  Excepting  that  in  every  such  subject  within 
its  appellate  jurisdiction  the  Circuit  Court  of  Appeals  at  any  time  may 
certify  to  the  Supreme  Court  of  the  United  States  any  questions  or 
propositions  of  law  concerning  which  it  desires  the  instruction  of  that 
court  for  its  proper  decision. 

"And  thereupon  the  Supreme  Court  may  either  give  its  instruction 
on  the  questions  and  propositions  certified  to  it,  which  shall  be  bind- 
ing upon  the  Circuit  Courts  of  Appeals  in  such  case,  or  it  may  require 
that  the  whole  record  and  cause  may  be  sent  up  to  it  for  its  considera- 
tion, and  thereupon  shall  decide  the  whole  matter  in  controversy  in 
the  same  manner  as  if  it  had  been  brought  there  for  review  by  writ  of 
error  or  appeal. 

"And  excepting  also  that  in  any  such  case  as  is  hereinbefore  made 
final  in  the  Circuit  Court  of  Appeals  it  shall  be  competent  for  the 
Supreme  Court  to  require,  by  certiorari  or  otherwise,  any  such  case 
to  be  certified  to  the  Supreme  Court  for  its  review  and  determination 
with  the  same  power  and  authority  in  the  case  as  if  it  it  had  been 
carried  by  appeal  or  writ  of  error  to  the  Supreme  Court.*' 


224  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

three  judges,  and  that  '^in  the  event  the  judges  sitting  in 
such  case  shall  be  divided  in  opinion,  the  case  shall  be  certi- 
fied to  the  Supreme  Court  for  review  in  like  manner  as  if 
taken  there  by  appeal  as  hereinafter  provided."  The  order 
of  the  Circuit  Court  pursues  the  language  of  this  provision 
and  attempts  to  send  up  the  whole  case  to  be  determmed  by 
this  court.  This  invokes  the  exercise  of  original  jurisdiction, 
and  cannot  be  sustained. 

In  a  note  to  United  StaJtes  v.  Ferreiray  13  How.  40,  52, 
which  was  inserted  by  order  of  the  court,  the  Chief  Justice 
states  the  substance  of  the  case  of  the  United  States  v.  Yale 
Todd,  which  was  decided  in  February,  1794,  but  not  printed, 
as  there  was  at  that  time  no  official  reporter.  This  note  thus 
concludes: 

"In  the  early  days  of  the  Government,  the  right  of  Con- 
gress to  give  original  jurisdiction  to  the  Supreme  Court,  in 
cases  not  enumerated  in  the  Constitution,  was  maintained 
by  many  jurists,  and  seems  to  have  been  entertained  by  the 
learned  judges  who  decided  Todd^s  case.  But  discussion 
and  more  mature  examination  has  settled  the  question  other- 
wise; and  it  has  long  been  the  established  doctrine,  and  we 
believe  now  assented  to  by  all  who  have  examined  the  sub- 
ject, that  the  original  jurisdiction  of  this  court  is  confined 
to  the  cases  specified  in  the  Constitution,  and  that  Con- 
gress cannot  enlarge  it.  In  all  other  cases  its  power  must  be 
appellate." 

Such  is  the  settled  rule,  and  it  is  inadmissible  to  suppose 
that  it  was  the  intention  of  Congress  to  run  counter  to  it. 

Ordinarily  in  the  Federal  courts,  in  the  absence  of  express 
statutory  authority,  no  appeal  can  be  taken  or  writ  of  error 
brought  except  from  a  final  decree  or  to  a  final  judgment. 
McLish  V.  Roff,  141  U.  S.  661,  665;  Forgay  v.  Conrad,  6  How. 
201,  205.  There  is  no  final  judgment  or  decree  in  this  case, 
nor  any  judicial  determination  from  which  an  appeal  would 
lie.  The  Alicia,  7  Wall.  571,  is  in  point.  In  that  case  it  ap- 
peared that  on  the  ninth  day  of  January,  1863,  a  decree  of 


B.  &  O.  R.  R.  V.  INTERSTATE  COMM.  COMM.    225 
215  U.  8.  Opinion  of  the  Court. 

condemnation  had  been  entered  in  the  District  Court  against 
the  Alicia  and  her  cargo  for  violation  of  the  blockade.  From 
this  decree  an  appeal  was  allowed  and  taken  to  the  Circuit 
Court;  and  on  the  eighteenth  of  May,  1867,  an  order  was 
made  in  that  court  on  the  application  of  the  parties  in  inter- 
est— there  being  at  this  time,  in  the  Circuit  Court,  no  order, 
judgment  or  decree  in  the  case — for  the  transfer  of  the  cause 
to  this  court  under  the  thirteenth  section  of  the  act  of  June  30, 
1864,  which  enacted  that  prize  causes,  depending  in  the 
Circuit  Court,  might  be  so  transferred.  This  court  held  that 
the  cause  was  removed  to  the  Circuit  Court  by  the  appeal 
from  the  decree  of  the  District  Court  and  that  that  decree 
was  vacated  by  the  appeal,  and  that  the  Circuit  Court  ac- 
quired full  jurisdiction  of  the  cause  and  was  fully  authorized  to 
proceed  to  final  hearing  and  decree.  And  Chief  Justice  Chase 
said  (p.  573) :  "  Nor  can  it  be  doubted  that,  under  the  Con- 
stitution, this  court  can  exercise,  in  prize  causes,  appellate 
jurisdiction  only.  An  appellate  jurisdiction  necessarily  im- 
plies some  judicial  determination,  some  judgment,  decree, 
or  order  of  an  inferior  tribunal,  from  which  an  appeal  has 
been  taken.  But  in  this  case  there  had  been  no  such  order, 
judgment,  or  decree  in  the  Circuit  Court;  and  there  was  no 
subsisting  decree  in  the  District  Court,  from  which  an  ap- 
peal could  be  taken.  We  are  obliged  to  conclude  that,  in 
the  provision  for  transfer,  an  attempt  was  inadvertently 
made  to  give  to  this  court  a  jurisdiction  withheld  by  the 
Constitution,  and,  consequently,  that  the  order  of  transfer 
was  without  effect.  The  cause  is  still  depending  in  the  Cir- 
cuit Court." 

The  result  is  that  the  order  must  be  set  aside  and  the  case 
remanded  to  the  Circuit  Court  with  directions  to  proceed  in 
conformity  with  law. 

Ordered  accordingly. 
VOL.  ccxv — 15 


226  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 


SOUTHERN  PACIFIC  COMPANY  v,  INTERSTATE 

COMMERCE  COMMISSION. 

CERTIFICATE  OF  THE  JUDGES  OF  THE  CIRCUIT  COURT  OF  THE 
UNITED  STATES  FOR  THE  NORTHERN  DISTRICT  OF  CALIFORNIA. 

No.  275.    Argued  October  12,  13,  1909.— Decided  December  6,  1909. 

On  authority  of  preceding  case  hdd  that  under  §  1  of  the  expediting 
act  of  February  11,  1903,  c.  544,  32  Stat.  823,  the  case,  although 
turning  only  on  a  point  of  law,  cannot  be  certified  to  this  court, 
in  absence  of  any  judgment,  opinion,  decision,  or  order  deter- 
minative of  the  case  below. 

The  facts  are  stated  in  the  opinion. 

Mr.  Maxwell  Evarts,  with  whom  Mr.  F.  C.  Diilardy  Mr. 
W.  W,  Cotton,  Mr.  P.  F.  Dunne  and  Mr.  Robert  S.  LoveU 
were  on  the  brief,  for  the  Southern  Pacific  Company. 

Mr.  Wade  H.  EUis,  Assistant  to  the  Attorney-General,  with 
whom  Mr.  Luther  M.  Waiter  and  Mr,  Edtdn  P.  Grosvenar, 
Special  Assistants  to  the  Attorney-General,  were  on  the  brief, 
for  the  Interstate  Commerce  Commission. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the 
court. 

This  case  comes  here  upon  a  certificate  of  the  three  judges 
of  the  Circuit  Court  for  the  Northern  District  of  Califomia 
under  §  1  of  the  expediting  act  of  February  11,  1903,  c.  544, 
32  Stat.  823,  as  construed  by  them. 

The  suit  was  brought  by  the  railroad  companies  in  the 
Circuit  Court  to  restrain  the  enforcement  of  an  order  of  the 
Interstate  Commerce  Commission,  which  established  a  maxi- 


YORDI  V,  NOLTK  227 

215  IT.  S.  Syllabus. 

mum  rate  for  the  transportation  of  rough  green  fir  lumber 
from  points  in  the  Willamette  Valley,  Oregon,  to  San  Fran- 
cisco. The  case  came  on  for  argument  before  the  three  Cir- 
cuit Judges  upon  the  demurrer  of  the  commission  to  the 
amended  bill  of  complaint,  to  which  was  attached  the  opin- 
ion and  order  of  the  commission. 

The  Circuit  Judges  certified  the  whole  case,  and  it  comes 
here  without  opinion,  decision  or  assignment  of  errors. 

Upon  the  grounds  stated  in  No.  339,  Baltimore  &  Ohio 
Railroad  Company  v.  Interstate  Commerce  Commission,  ante, 
p.  216,  the  certificate  is  dismissed  and  the  case  remanded  to 
the  Circuit  Court  with  directions  to  proceed  therein  in  con- 
formity with  law. 

Ordered  accordingly. 


■«•#> 


YORDI  v.  NOLTE,  UNITED  STATES  MARSHAL. 

APPEAL   FROM    THE    DISTRICT   COURT    OF   THE    UNITED    STATES 
FOR  THE   WESTERN   DISTRICT   OF  TEXAS. 

No.  382.    Submitted  October  22,  1909.— Decided  December  6,  1909. 

In  foreign  extradition  proceedings  the  complaint  is  sufficient  to  au- 
thorize the  commissioner  to  act  if  it  so  clearly  and  explicitly  states 
a  treaty  crime  that  the  accused  knows  exactly  what  the  charge  is; 
nor  need  the  record  and  depositions  from  the  demanding  country 
be  actually  fastened  to  the  complaint. 

In  this  case  held  that  depositions  in  the  possession  of  the  officer  of 
the  demanding  country  making  the  complaint,  which  showed 
actual  groimds  for  the  prosecution  and  of  which  the  commissioner 
had  knowledge,  from  their  use  in  a  former  proceeding,  were  ad- 
missible on  the  hearing  before  the  commissioner  and  were  also 
admissible  for  the  purpose  of  vesting  jurisdiction  in  him  to  issue 
the  warrant. 

166  Fed.  Rep.  921,  affirmed. 


228  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  8. 

Pablo  Yordi,  being  detained  in  custody  by  the  United 
States  marshal  of  the  Western  District  of  Texas,  obtained 
from  the  District  Court  for  that  district  a  writ  of  habeas 
corpus  to  secure  his  release.  He  was  charged  in  the  republic 
of  Mexico  with  the  crime  of  "fraud  and  forgery  of  docu- 
ments," and  a  warrant  for  his  arrest  was  duly  issued  by  the 
criminal  judge  of  the  city  of  Guadalajara.  He  avoided  arrest 
in  Mexico  and  fled  to  El  Paso,  Texas,  where  he  was  detained 
in  prison,  under  an  order  of  the  United  States  commissioner, 
awaiting  the  issue  by  the  proper  authorities  of  an  order  for 
his  extradition. 

At  the  hearing  on  the  habeas  corpus  it  was  stipulated  that 
the  crimes  in  the  complaint  made  before  the  United  States 
commissioner  were  extraditable  offenses  under  the  existing 
treaty  between  the  United  States  and  Mexico;  that  at  the 
time  of  the  hearing  before  the  commissioner  the  complaint 
in  the  case  made  by  A.  V.  Lomeli,  consul  of  Mexico,  was 
solely  upon  information  and  belief;  that  he  had  no  actual 
or  personal  knowledge  of  the  commission  of  any  offense,  but 
at  the  time  of  making  the  complaint  the  said  Mexican  consul 
had  before  him  the  record  and  depositions  of  the  witnesses 
of  the  republic  of  Mexico  in  the  proceedings  before  the  crimi- 
nal judge  of  Guadalajara. 

There  were  three  complaints  made  against  Yordi.  The 
first,  made  by  the  assistant  United  States  attorney,  was  dis- 
missed. The  second  and  third  were  made  by  the  Mexican 
consul. 

Upon  the  hearing  under  the  first  complaint  the  record  and 
evidence  contained  in  the  proceedings  in  Mexico  were  in- 
troduced in  evidence  before  the  commissioner,  as  they  were 
also  on  the  hearing  on  the  second  complaint.  The  commis- 
sioner found  that  there  was  probable  cause  to  believe  Yordi 
guilty  of  the  offense  of  uttering  a  forged  instrument  in  the 
.State  of  Jalisco,  United  States  of  Mexico,  on  or  about  the 
twenty-sixth  day  of  May,  1908,  and  that  there  was  also 
probable  cause  to  believe  Yordi  had  committed  the  offense 


YORDI  V.  NOLTE  229 

215  U.  S.  Opinion  of  the  Ck>urt. 

of  obtaining  money  by  means  of  false  device  in  the  Mexican 
state  mentioned.  The  commissioner  therefore  ordered  Yordi 
to  be  held  for  extradition  to  the  republic  of  Mexico  on  the 
charges  alleged  in  the  third  and  fourth  counts  of  the  com- 
plaint, and  that  he  be  committed  to  the  county  jail  of  El 
Paso  County,  Texas,  to  await  the  action  of  the  proper  au- 
thorities in  the  city  of  Washington,  upon  demand  for  his 
extradition  to  the  republic  of  Mexico. 

The  case  was  heard  before  Maxey,  District  Judge,  who 
discharged  the  writ  of  habeas  carpus^  and  required  the  marshal 
to  hold  the  petitioner  in  custody  until  a  warrant  of  extradi- 
tion was  duly  issued.  From  this  final  order  this  appeal  was 
taken.  Judge  Maxey's  opinion  is  reported  in  166  Fed.  Rep. 
921,  Ex  parte  Yordi, 

Mr.  Waters  Davis  for  appellant. 

Mr,  Assistant  Attorney-General  Russell  for  appellee. 

Mr.  Chief  Justice  Fuller,  after  making  the  foregoing 
statement,  delivered  the  opinion  of  the  court. 

The  contention  of  appellant's  counsel  is  that,  although  the 
Mexican  consul  had  possession  of  the  record  from  Mexico  and 
the  depositions  of  the  witnesses  therein  contained,  which 
embodied  the  proceedings  had  before  the  judge  at  Guadala- 
jara, Mexico,  including  the  testimony  of  witnesses,  which 
appeared  to  the  judge  amply  suflScient  to  justify  an  order 
for  the  apprehension  of  the  accused,  nevertheless  there  was 
still  necessary,  in  order  for  the  commissioner  to  take  juris- 
diction to  hear  the  application  that  either  the  record  from 
Mexico  should  be  attached  to  the  complaint  or  that  the  com- 
plaint should  disclose  upon  its  face  the  sources  of  the  consul's 
information.  This  record  from  Mexico  was  not  only  before 
the  Mexican  consul  when  he  made  the  complaint  against 
Yordi,  now  under  consideration,  but  the  commissioner  was 


230  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

thoroughly  familiar  with  it,  as  it  had  been  introduced  in 
evidence  before  him  upon  the  hearing  of  the  first  complaint. 

Judge  Maxey  was  of  opinion  that  as  depositions  from  a 
foreign  country  were  admissible  in  evidence  upon  the  hear- 
ing before  the  commissioner,  they  were  also  to  be  admitted 
for  the  purpose  of  vesting  jurisdiction  in  the  commissioner 
to  issue  the  warrant,  and  as  in  this  case  the  depositions  were 
in  themselves  sufficient  to  satisfy  the  commissioner  that  the 
prosecution  against  the  accused  was  based  upon  real  grounds 
and  not  upon  mere  suspicion  of  guilt,  it  was  not  indispensable 
to  the  jurisdiction  of  the  commissioner  that  the  record  and 
depositions  from  Mexico  should  be  actually  fastened  to  the 
complaint  when  they  were  in  the  custody  and  keeping  of 
the  consul,  and  the  commissioner  was  already  in  possession 
of  the  information  which  they  contained.  We  concur  in  these 
views. 

The  general  doctrine  in  respect  of  extradition  complaints 
is  well  stated  by  Judge  Coxe  in  Ex  parte  Stemaman,  77  Fed. 
Rep.  595,  597,  as  follows : 

"The  complaint  should  set  forth  clearly  and  briefly  the 
offense  charged.  It  need  not  be  drawn  with  the  formal  pre- 
cision of  an  indictment.  If  it  be  sufficiently  explicit  to  in- 
form the  accused  person  of  the  precise  nature  of  the  charge 
against  him  it  is  sufficient.  The  extreme  technicality  with 
which  these  proceedings  were  formerly  conducted  has  given 
place  to  a  more  liberal  practice,  the  object  being  to  reach  a 
correct  decision  upon  the  main  question — is  there  reason- 
able cause  to  believe  that  a  crime  has  been  committed?  The 
complaint  may,  in  some  instances,  be  upon  information  and 
beUef .  The  exigencies  may  be  such  that  the  criminal  may 
escape  punishment  unless  he  is  promptly  apprehended  by 
the  representatives  of  the  country  whose  law  he  has  violated. 
From  the  very  nature  of  the  case  it  may  often  happen  that 
such  representative  can  have  no  personal  knowledge  of  the 
crime.  If  the  offense  be  one  of  the  treaty  crimes,  and  if  it 
be  stated  clearly  and  explicitly  so  that  the  accused  knows 


YORDI  V.  NOLTE.  231 

216  U.  S.  Opinion  of  the  Court. 

exactly  what  the  charge  is,  the  complaint  is  suflScient  to 
authorize  the  commissioner  to  act.  The  foregoing  proposi- 
tions are,  it  is  thought,  sustained  by  the  following  authori- 
ties: In  re  Farez,  7  Blatchf.  345,  Fed.  Cas.  No.  4,645;  In  re 
Roth,  15  Fed.  Rep.  506;  In  re  Henrich,  5  Blatchf.  414,  Fed. 
Cas.  No.  6,369;  Ex  parte  Van  Hoven,  4  Dill.  415,  Fed.  Cas. 
No.  16,859;  In  re  Breen,  73  Fed.  Rep.  458;  Ex  parte  Lane,  6 
Fed.  Rep.  34;  In  re  Herres,  33  Fed.  Rep.  165;  Castro  v.  De  Uri- 
arte,  16  Fed.  Rep.  93;  In  re  MacdonneU,  11  Blatchf.  79,  Fed. 
Cas.  No.  8,771." 

It  was  argued  that  this  court  had  held  otherwise,  particu- 
lariy  in  Rice  v,  Ames,  180  U.  S.  371,  where  Mr.  Justice  Brown, 
delivering  the  opinion,  declared  that  several  counts  of  the 
complaint  were  obviously  insuflScient,  "since  the  charges 
were  made  solely  upon  information  and  belief,-  and  no  at- 
tempt was  made  even  to  set  forth  the  sources  of  information, 
or  the  grounds  of  affiant's  belief."  But  Mr.  Justice  Brown 
further  said  (p.  375) : 

"We  do  not  wish,  however,  to  be  understood  as  holding 
that,  in  extradition  proceedings,  the  complaint  must  be 
sworn  to  by  persons  having  actual  knowledge  of  the  offense 
charged.  This  would  defeat  the  whole  object  of  the  treaty, 
as  we  are  bound  to  assume  that  no  foreign  government  pos- 
sesses greater  power  than  our  own  to  order  its  citizens  to  go 
to  another  country  to  institute  legal  proceedings.  This  is 
obviously  impossible.  The  ordinary  course  is  to  send  an 
officer  or  agent  of  the  Government  for  that  purpose,  and 
Rev.  Stat.,  §5271  makes  special  provisions  Hhat  in  every 
case  of  complaint  and  of  a  hearing  upon  the  return  of  the 
warrant  of  arrest,  any  depositions,  warrants,  or  other  papers 
offered  in  evidence,  shall  be  admitted  and  received  for  the 
purpose  of  such  hearing  if  they  shall  be  properly  and  legally 
authenticated  so  as  to  entitle  them  to  be  received  as  evidence 
of  the  criminality  of  the  person  so  apprehended,  by  the 
tribunals  of  the  foreign  country  from  which  the  accused 
party  shall  have  escaped,  and  copies  of  any  such  depositions, 


232  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

warrants  or  other  papers,  shall,  if  authenticated  according 
to  the  law  of  such  foreign  country,  be  in  like  manner  received 
as  evidence,'  of  which  authentication  the  certificate  of  the 
diplomatic  or  consular  officer  of  the  United  States  shall  be 
sufficient.  This  obviates  the  necessity  which  might  other- 
wise exist  of  confronting  the  accused  with  the  witnesses 
against  him.  Now,  it  would  obviously  be  inconsistent  to 
hold  that  depositions,  which  are  admissible  upon  the  hear- 
ing, should  not  also  be  admitted  for  the  purpose  of  vesting 
jurisdiction  in  the  commissioner  to  issue  the  warrant.  In- 
deed, the  words  of  the  statute,  'in  every  case  of  complaint,^ 
seem  to  contemplate  this  very  use  of  them.  If  the  officer 
of  the  foreign  government  has  no  personal  knowledge  of  the 
facts,  he  may  with  entire  propriety  make  the  complaint  upon 
information  and  belief,  stating  the  sources  of  his  information 
and  the  grounds  of  his  belief,  and  annexing  to  the  complaint 
a  properly  certified  copy  of  any  indictment  or  equivalent 
proceeding,  which  may  have  been  found  in  the  foreign  coun- 
try, or  a  copy  of  the  depositions  of  witnesses  having  actual 
knowledge  of  the  facts,  taken  under  the  treaty  and  act  of 
Congress.  This  will  afford  ample  authority  to  the  commis- 
sioner for  issuing  the  warrant." 

The  same  learned  judge  said  in  Grin  v.  Shines  187  U.  S. 
181,  193: 

''All  that  is  required  by  §  5270  is  that  a  complaint  shall 
be  made  under  oath.  It  may  be  made  by  any  person  acting 
under  the  authority  of  the  foreign  government  having  knowl- 
edge of  the  facts,  or  in  the  absence  of  such  person,  by  the 
official  representative  of  a  foreign  government  based  upon 
depositions  in  his  possession.'' 

We  think  the  evidence  produced  at  the  hearing  justified 
the  detention  of  the  accused  and  corrected  any  irregularity 
in  the  complaint.  As  this  court  said  in  Nashimura  Ekiu  v. 
United  States,  142  U.  S.  651,  662: 

"A  writ  of  habeas  corpiLs  is  not  like  an  action  to  recover 
damages  for  an  unlawful  arrest  or  commitment,  but  its  ob- 


UNITED  STATES  v,  CORBETT.  233 

215  U.  S.  Syllabus. 

ject  is  to  ascertain  whether  the  prisoner  can  lawfully  be  de- 
tained in  custody;  and  if  sufficient  ground  for  his  detention 
by  the  Government  is  shown,  he  is  not  to  be  discharged  for 
defects  in  the  original  arrest  or  commitment.  Ex  parte  Boll- 
man  &  SwartvxnU,  4  Cranch,»75,  114,  125;  Coleman  v.  Tennes- 
see, 97  U.  S.  509,  519;  United  States  v.  McBratney,  104  U.  S. 
621,  624;  KeUy  v.  Thomas,  15  Gray,  192;  The  King  v.  Marks,  3 
East,  157;  Shuttlewarth's  Case,  9  Q.  B.  651." 

The  District  Judge  was  right,  and  his  final  order  discharg- 
ing the  writ  of  habeas  corpus  is 

Affirmed, 


4^>»» 


UNITED  STATES  v.  CORBETT. 

ERROR  TO  THE   DISTRICT  COURT  OF  THE   UNITED  STATES  FOR 
TH3E   WESTERN   DISTRICT   OF  WISCONSIN. 

No.  236.    Argued  October  14,  1909.— Decided  December  6,  1909. 

Whether  the  person  deceived  by  false  entries  is  the  person  intended 
by  the  statute,  and  whether  the  averments  as  to  the  deceit  are 
sufficient  to  sustain  the  indictment,  are  questions  which  involve 
the  construction  of  the  statute  on  which  an  indictment  for  making 
false  entries  in  violation  of  §  5209,  Rev.  Stat.,  is  based,  and  this 
court  has  jurisdiction  to  review  under  the  Criminal  Appeals  Act 
of  March  2,  1907,  c.  2564,  34  Stat.  1246. 

The  construction  of  a  statute  in  a  particular,  in  regard  to  which  no 
question  was  raised,  will  not  prevent  the  determination  as  an 
original  question  of  how  the  statute  should  be  construed  in  that 
particular  when  controverted  in  a  subsequent  case. 

The  rule  of  strict  construction  of  penal  statutes  does  not  require  a 
narrow  technical  meaning  to  be  given  to  words  in  disregard  of  their 
context  and  so  as  to  frustrate  the  obvious  legislative  intent. 

Notwithstanding  the  rule  of  strict  construction  the  offense  of  deceiv- 
ing an  agent  by  doing  a  specified  act  may  include  deception  of  the 
officer  appointing  the  agent  where  the  statute  is  clearly  aimed  at 
the  deception;  and  under  §5209,  Rev.  Stat.,  the  making  of  false 


234  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  215  U.  S. 

entries  with  the  intent  to  deceive  any  agent  appointed  to  examine 
the  affairs  of  a  national  bank,  includes  an  attempt  to  deceive  the 
Comptroller  of  the  Currency  by  false  entries  made  in  a  report  di- 
rectly to  him  under  §  5311,  Rev.  Stat. 

Where  intent  is  an  essential  ingredient  of  a  crime  it  may  be  charged 
in  general  terms  and  its  existence  ^becomes  a  question  for  the  jury, 
excepting  only  where  the  criminal  intent  could  not  as  a  matter  of 
law  have  existed  under  any  possible  circumstances. 

Under  Rev.  Stat.  §  5209,  false  entries  as  to  the  condition  of  a  national 

bank  may  be  made  with  intent  to  injure  the  bank  even  though 

they  show  the  bank  to  be  in  a  more  favorable  condition  than  it 

actually  is,  and  the  question  of  intent  to  injure  is  one  for  the  jury. 

Fed.  Rep.       ,  reversed. 

The  facts,  which  involve  the  construction  of  §  5209,  Rev. 
Stat.,  are  stated  in  the  opinion. 

The  Solicitor  General  for  the  United  States : 

The  allegation  in  each  count  of  the  indictment  that  the 
false  entry  in  the  report  to  the  Comptroller  of  the  Currency 
was  made  "with  intent  thereby  to  injure  and  defraud  the 
bank''  is  sufficient  to  sustain  the  indictment.  The  natural 
result  of  false  entries  in  such  a  report  is  an  injury  to  the 
association;  and  the  officer  making  such  false  entries,  and 
those  aiding  and  abetting  him  in  making  them,  are  con- 
clusively presumed  to  intend  such  result.  As  to  the  proper 
rule  with  reference  to  proof  of  criminal  intent  under  §  5209, 
Rev.  Stat.,  see  United  States  v.  Harper,  33  Fed.  Rep.  481,  482. 

All  national  banks  are  under  the  supervision  and  control 
of  the  Comptroller  of  the  Currency,  with  the  approval  of  the 
Secretary  of  the  Treasury.  The  Comptroller  may  cause 
examinations  of  national  banks  to  be  made  as  often  as  he 
may  deem  necessary  to  keep  himself  informed  as  to  their 
exact  condition  (§  5240,  Rev.  Stat.);  and  if  at  any  time  he 
shall  find  that  a  national  bank  is  in  an  insolvent  condition 
or  that  the  law  has  been  knowingly  violated  by  its  officers 
or  agents,  he  shall  have  it  placed  in  the  hands  of  a  receiver 
and  its  assets  distributed  (§  5239,  Rev.  Stat.)  Act  June  30, 
1876,  19  Stat.  63. 


UNITED  STATES  v.  CORBETT.  236 

215  U.  S.  Argument  for  Defendant  in  Error. 

National  bank  exanainers  are  but  agents  of  the  Comp- 
troller, and  their  acts  are  his  in  contemplation  of  law.  The 
Comptroller,  while  not  required  by  statute  to  make  personal 
examination  of  an  association's  books,  is  necessarily  vested 
with  the  right  so  to  do,  and  is  in  fact  an  agent  appointed  to 
examine  the  affairs  of  every  national  bank.  Since  the  object 
of  every  examination  is  to  give  information  to  the  Comp- 
troller, who  alone  has  power  to  act,  the  purpose  of  every 
false  entry  in  a  report  must  be  primarily  to  deceive  the  Comp- 
troller, though  the  deception  be  practiced  through  an  ex- 
aminer appointed  by  him. 

The  Comptroller,  therefore,  being  an  agent  appointed  to 
examine  the  affairs  of  national  banks,  the  allegation  in  each 
coimt  that  the  entry  was  made  with  intent  "to  deceive  an 
agent  appointed  to  examine  the  affairs  of  such  associations, 
to-wit,  the  Comptroller  of  the  Currency  of  the  United  States," 
is  suJBGicient. 

The  clause  in  §5209,  which  declares  it  to  be  an  offense 
to  make  false  entries  in  a  report  has  been  liberally  construed 
by  the  courts.  United  States  v.  HughiUj  45  Fed.  Rep.  47; 
United  States  v.  Booker ^  80  Fed.  Rep.  376;  Bacon  v.  United 
States,  97  Fed.  Rep.  35. 

Mr.  T.  J.  Connor  for  defendant  in  error: 

This  court  has  not  jurisdiction  to  review  under  the  act  of 
March  2,  1907.  The  indictment  was  dismissed  below  be- 
cause the  charge  of  intent  was  not  sufficiently  stated.  The 
construction  of  the  statute  was  not  involved.  United  States 
v.  Keitely  211  U.  S.  370.  This  appears  by  the  opinion  which 
as  part  of  the  record  is  conclusive  here.  Jacks  v.  Helena, 
115  U.  S.  288;  Keiger  v.  Railroad  Co.,  125  U.  S.  39. 

The  decision  below  was  right.  The  statute  though  defin- 
ing the  offense  as  a  misdemeanor  in  fact  makes  it  a  felony, 
United  States  v.  Cadwaiader,  59  Fed.  Rep.  677, — an  infamous 
crime,  Ftdsorn  v.  United  States,  160  U.  S.  122, — and  the 
severity  of  the  punishment  negatives  the  idea  that  mere 


236  OCTOBER  TERM,  1909. 

Opinion  of  the  Ck)urt.  215  U.  8. 

technical  violations  are  to  be  punished.  The  statute  being 
highly  penal  must  be  strictly  construed.  United  States  v. 
Potter,  56  Fed.  Rep.  97. 

The  Comptroller  of  the  Currency  is  not  ''an  agent"  within 
the  strict  construction  of  the  statute.  As  to  the  construction 
of  §  5209,  Rev.  Stat.,  see  Clemmt  v.  United  States,  149  Fed. 
Rep.  305;  United  States  v.  Barton,  10  Fed.  Rep.  874. 

A  false  report  such  as  is  charged  in  the  indictment  and 
which  makes  the  bank  appear  in  better  shape  than  it  really  is, 
is  not  made  with  intent  to  injure  the  bank. 

Even  though  a  report  be  false,  if  it  makes  the  bank 
appear  stronger  than  it  really  is  there  is  no  intent  to  in- 
jure it. 

Mb.  Justice  Whttb  delivered  the  opinion  of  the  court. 

The  trial  court  quashed  portions  of  each  count  of  the  in- 
dictment and  sustained  a  demurrer  to  the  remainder.  This 
direct  review  is  sought  because  of  the  contention  that  the 
rulings  in  question  were  based  on  a  construction  of  Rev. 
Stat.,  §  5209. 

Each  of  the  six  counts  charged  Corbett,  one  of  the  defend- 
ants, who  was  cashier  of  the  Bank  of  Ladysmith,  a  national 
banking  association,  with  making  a  false  entry  as  to  the  | 

condition  of  the  bank  in  a  report  made  to  the  Comptroller  ! 

of  the  Currency.  The  charge  was  that  the  false  entry  was 
made  with  the  intent  to  injure  and  defraud  said  association 
and  to  deceive  an  agent  appointed  to  examine  the  affairs  of 
such  association,  to  wit,  the  Comptroller  of  the  Currency  of 
the  United  States.    Newman  and  McGill,  the  other  defend-  | 

ants,  who  were  directors  and  respectively  president  and  vice-  i 

president  of  the  bank,  were  charged  in  each  count  with  hav- 
ing with  like  intent  aided,  abetted,  etc.,  Corbett  in  the  making 
of  the  false  entry.    The  motion  to  quash  was  directed  against  | 

that  portion  of  each  count  which  charged  that  the  alleged 
acts  were  done  with  intent  to  deceive  an  agent  appointed  to 


UNITED  STATES  v.  CORBETT.  237 

216  IT.  S.  OpinioQ  of  the  Court. 

examine,  etc.  The  demurrer  challenged  generally  the  suffi- 
ciency of  the  averments  of  each  count. 

It  is  insisted  that  there  is  no  jurisdiction  to  review,  be- 
cause the  decision  below  was  not  based  upon  the  invalidity  or 
construction  of  any  statute.  We  think  that,  within  the  ruling 
in  United  States  v.  Keitel,  211  U.  S.  370,  the  construction  of 
Rev.  Stat.,  §  5209  was  involved.  The  suggestion  of  want  of 
jurisdiction  is,  therefore,  without  merit. 

In  disposing  of  the  merits  we  shall  consider  separately  the 
rulings  on  the  motion  to  quash  and  upon  the  demurrer. 

1.  The  motion  to  quash. 

The  motion  was  sustained  upon  the  theory  that  no  offense 
was  stated  by  the  charge  of  making  a  false  entry  in  the  report 
to  the  Comptroller  of  the  Currency  with  the  intent  to  de- 
ceive an  agent  appointed  to  examine  the  affairs  of  the  bank, 
viz.,  the  Comptroller  of  the  Currency,  because  that  official 
was  not  such  an  agent.  While  this  was  the  only  question 
actually  decided,  nevertheless  the  reasoning  which  led  the 
court  to  the  conclusion  by  it  applied  went  further  and  caused 
the  court  to  declare  that  the  statute  in  the  particular  men- 
tioned was  in  effect  inoperative.  This  because  not  alone  was 
the  intent  to  deceive  the  Comptroller  of  the  Currency  not 
embraced,  but  also  the  intent  to  deceive  an  agent  appointed 
to  examine  was  excluded  so  far  as  a  report  made  to  the 
Comptroller  was  concerned,  as  such  agent  would  be  required 
to  examine  the  books  and  papers  of  the  bank  and  not  a  report 
made  to  the  Comptroller. 

We  are  thus  called  upon  to  construe  Rev.  Stat.,  §  5209. 
The  material  portion  of  that  section  is  as  follows : 

"Every  president,  director,  cashier,  teller,  clerk,  or  agent 
of  any  association  .  .  .  who  makes  any  false  entry  in 
any  book,  report,  or  statement  of  the  association,  with  in- 
tent ...  to  injure  or  defraud  the  association,  .  .  . 
or  to  deceive  .  .  .  any  agent  appointed  to  examine  the 
affairs  of  any  such  association,  and  every  person  who  with 
like  intent  aids  or  abets  any  officer,  clerk,  or  agent  in  any 


238  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

violation  of  this  section,  shall  be  deemed  guilty  of  a  mis- 
demeanor.    .     .     ." 

Before  analyzing  its  text  we  briefly  refer  to  authorities 
relied  upon  on  one  side  or  the  other  as  aflBrming  or  denying 
the  correctness  of  the  construction  affixed  to  the  section  by 
the  court  below. 

In  United  States  v.  BarUrw,  10  Fed.  Rep.  874,  Benedict, 
District  Judge,  sustained  a  motion  to  quash  certain  counts 
of  an  indictment,  which  charged  the  making  of  a  false  entry 
in  a  report  to  the  Comptroller  of  the  Currency,  with  the  in- 
tent to  deceive  that  officer,  and  held  in  a  brief  opinion  that 
the  Comptroller  was  not  an  agent  appointed  to  examine  the 
affairs  of  a  national  banking  association  within  the  meaning 
of  the  statute. 

In  Cochran  v.  United  States,  157  U.  S.  286,  which  involved 
a  review  of  convictions  under  indictments  for  making  false 
entries  in  reports  made  to  the  Comptroller  of  the  Currency, 
in  violation  of  Rev.  Stat.,  §  5209,  passing  on  the  objection 
that  no  one,  except  he  who  verified  reports  made  to  the 
Comptroller,  could  be  convicted  under  the  indictments,  the 
court,  among  other  things,  said  (p.  294) : 

"If  the  statements  of  Thomas  be  taken  as  true,  he,  al- 
though verifying  the  reports  as  cashier,  could  not  be  held 
criminally  liable  for  their  falsity,  since  he  took  and  believed 
the  statements  of  Cochran  and  Sayre  as  to  the  truth  and 
correctness  of  such  reports.  If  this  be  true,  there  was  lack- 
ing on  his  part  that  intent  to  defraud  the  association,  or  to 
deceive  the  Comptroller  of  the  Currency,  which  is  made,  by 
§  5209,  a  material  element  of  the  offense." 

On  page  298  the  court  considered  a  refusal  to  give  an  in- 
struction, which,  in  the  course  of  defining  a  false  entry,  said : 

"The  intention  to  deceive  is  essential  to  constitute  a  viola- 
tion of  the  statute,  and  you  must  be  satisfied  beyond  a  rea- 
sonable doubt  from  the  evidence,  first,  that  the  defendants 
or  one  of  them  made  a  false  entry  in  said  report ;  and,  second, 
that  it  was  made  with  the  intention  of  misleading  or  deceiv- 


UNITED  STATES  v.  CORBETT.  239 

215  U.  S.  Opinion  of  the  Court. 

ing  the  Comptroller  of  the  Currency,  or  some  other  person 
or  pci'sons  alleged  in  the  said  indictment." 

It  was  held  that  the  refused  instruction  was  substantially 
embodied  in  the  charge  as  given,  wherein,  among  other  things, 
the  trial  court  said  (p.  298) : 

"The  intent  must  have  been,  as  laid  in  the  indictment, 
to  mislead  and  deceive  one  of  these  parties,  either  some  of 
the  oflScers  of  the  bank  or  the  oflScer  of  the  Government  ap- 
pointed to  examine  into  the  affairs  of  the  bank.  ...  So 
that  you  must  find,  not  only  the  fact  that  there  was  an  omis- 
sion to  make  the  proper  entry,  but  that  with  it  was  an  intent 
to  conceal  the  fact  from  somebody  who  was  concerned  in  the 
bank,  or  concerned  in  overseeing  it,  and  supervising  its  opera- 
tions and  the  conduct  of  its  business." 

Since  the  decision  of  the  Cochran  case,  and  without  citing 
that  case  on  that  subject,  in  Clement  v.  United  StaieSj  149 
Fed.  Rep.  305,  the  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit,  considering  an  objection  that  an  allegation  in  a 
coimt  was  immaterial  which  charged  that  a  false  entry  was 
made  in  a  report  to  the  Comptroller  of  the  Currency,  with 
intent  to  deceive  that  oflScial  and  any  agent  who  might  be 
appointed  to  examine  the  affairs  of  a  bank,  said  (p.  316) : 

"That  is  quite  correct  so  far  as  the  allegation  concerning 
the  intent  to  deceive  the  Comptroller  is  concerned.  Such 
intent  is  not  one  of  those  requisite  under  §  5209  to  con- 
stitute an  offense.  But  the  contention  is  not  correct  in  so 
far  as  the  allegation  relates  to  the  intent  to  deceive  an  agent 
who  might  be  appointed  to  examine  the  affairs  of  the  bank." 

Irrespective  of  the  direct  conflict  between  the  statement 
just  quoted  and  the  reasoning  of  the  court  below  in  the  case 
at  bar,  it  is  apparent  that  neither  the  Bartow  nor  the  Clement 
case,  in  view  of  the  Cochran  case,  can  be  considered  as  per- 
suasive. The  Cochran  case,  however,  it  is  urged  should  not 
be  treated  as  authority,  because  it  does  not  appear  that  any 
question  was  raised  concerning  the  construction  of  the  statute 
in  the  particular  now  controverted,  but  that  the  meaning 


240  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

of  the  statute  was  taken  for  granted,  and  hence  the  mere 
assumption  which  was  indulged  in  when  deciding  the  Cochran 
case  should  not  now  prevent  a  determination  of  the  significance 
of  the  language  of  the  statute.  As  the  report  of  the  Cochran 
case  indicates  that  the  premise  relied  on  is  true,  we  come  to 
consider  the  meaning  of  the  section  as  an  original  question. 

The  report  to  the  Comptroller,  in  which  the  entries  were 
charged  to  have  been  false,  and  to  have  been  made  with  the 
intent  to  deceive  that  oflScer  as  an  agent  appointed  to  ex- 
amine, etc.,  was  clearly  one  made  imder  the  provisions  of 
Rev.  Stat.,  §  5211,  which  reads  as  follows: 

"Every  association  shall  make  to  the  Comptroller  of  the 
Currency  not  less  than  five  reports  during  each  year,  accord- 
ing to  the  form  which  may  be  prescribed  by  him,  verified 
by  the  oath  or  aflSrmation  of  the  president  or  cashier  of  such 
association,  and  attested  by  the  signature  of  at  least  three 
of  the  directors.  Each  such  report  shall  exhibit,  in  detail 
and  under  appropriate .  heads,  the  resources  and  liabilities 
of  the  association  at  the  close  of  business  of  any  past  day 
by  him  specified;  and  shall  be  transmitted  to  the  Comptroller 
within  five  days  after  the  receipt  of  a  request  or  requisition 
therefor  from  him." 

The  authority  conferred  by  this  section  upon  the  Comp- 
troller is  but  one  among  the  comprehensive  powers  with 
which  he  is  endowed  by  the  statute  for  the  purpose  of  exam- 
ining and  supervising  the  operations  of  national  banks,  pre- 
venting and  detecting  violations  of  law  on  their  part,  ap- 
pointing receivers  in  case  of  necessity,  etc.  From  the  nature 
of  these  powers  it  would  seem  clear  that  the  Comptroller  is 
an  officer  or  agent  of  the  United  States,  expressly  as  well 
as  impliedly  clothed  with  authority  to  examine  into  the 
affairs  of  national  banking  associations,  and  therefore  a  false 
entry  made  in  a  report  to  him  is  directly  embraced  in  the 
provision  of  Rev.  Stat.,  §  5209.  But  it  is  argued  while  this 
may  be  abstractly  true,  it  is  not  so  when  the  provision  of 
Rev.  Stat.,  §  5240  is  considered,  conferring  power  upon  the 


UNITED  STATES  v.  CORBETT.  241 

215  U.  S.  Opinion  of  the  Court. 

Comptroller,  with  the  approval  of  the  Secretary  of  the  Treas- 
ury, to  appoint  suitable  agents  to  make  an  examination  of 
the  affairs  of  every  national  banking  association.  Because  of 
this  power  the  contention  is  that  the  words  "any  agent  ap- 
pointed to  examine  the  affairs  of  any  such  bank"  should  be 
construed  as  embracing  only  the  subordinate  agents  whom 
the  Comptroller  is  authorized  to  appoint.  But  to  so  hold,  we 
think,  would  do  violence  to  the  text  of  §  5209,  and  conflict 
with  its  context,  and  would,  besides,  frustrate  the  plain  pur- 
pose which  the  section  as  a  whole  was  intended  to  accom- 
plish, especially  if  it  be  considered  in  the  light  of  cognate 
provisions  of  the  statute.  We  say  the  first,  because  the 
particular  words  of  the  text  relied  upon,  "  any  agent  appointed 
to  examine,"  etc.,  are  all-embracing,  and  cannot  reasonably 
be  held  to  exclude  the  ComptroDer,  the  principal  agent  en- 
dowed by  the  statute  with  the  power  to  examine  national 
banks.  Indeed,  the  words  "any  agent"  would  seem  to  have 
been  used  in  the  broadest  sense  for  the  express  purpose  of 
excluding  the  possibility  of  the  contention  now  made.  Nor 
does  the  fact  that  the  section  of  the  Revised  Statutes  em- 
powering the  Comptroller  to  call  for  reports  from  national 
banks  is  contained  in  a  section  subsequent  to  the  one  which 
embodies  the  provision  authorizing  the  Comptroller  to  ap- 
point agents  to  examine,  give  force  to  the  contention  that 
the  Comptroller  cannot  be  embraced  by  the  words  "any 
agent."  The  provision  in  question  was  originally  contained 
in  the  act  of  1864,  which  moreover  forbade  certain  acts  in 
the  transaction  of  the  affairs  of  national  banks,  empowered 
the  Comptroller  of  the  Currency  to  exercise  supervisory 
power,  to  call  for  reports  from  the  associations  and  to  bring 
into  play  other  authority  substantially  as  found  in  the  law 
as  now  existing.  This  was  followed  by  the  provision  giving 
to  the  Comptroller  the  right  to  appoint  subordinate  exam- 
iners, the  whole  being  concluded  by  a  section  containing  pro- 
visions which  are  now  substantially  embodied  in  Rev.  Stat., 
§5209.  It  is  apparent  that  such  provisions  embraced  acts 
VOL.  ccxv — 16 


242  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

forbidden  and  matters  regulated  by  previous  sections,  in- 
cluding the  reports  to  be  made  by  the  associations  to  the 
Comptroller  and  the  examination  of  books  and  papers  by  the 
agents  appointed  by  the  Comptroller.  The  intention  cannot 
be  reasonably  imputed  of  punishing  an  intent  to  deceive  a 
subordinate  of  the  Comptroller  by  means  of  false  entries  in 
a  report  required  to  be  made  directly  to  the  Comptroller  and 
for  his  information  and  guidance,  and  yet  at  the  same  time 
not  to  punish  the  intent  to  deceive  the  very  officer  to  whom 
the  report  was  to  be  made.  Including  the  reports  to  be  made 
to  the  Comptroller  in  the  comprehensive  grouping  of  the 
section  excludes  the  conception  that  such  officer  was  not 
considered  as  embraced  in  the  words  "any  officer  appointed," 
etc.  But  the  argument  is  that,  however  cogent  may  be  the 
considerations  just  stated,  they  are  here  inapplicable,  because 
the  statute  is  a  criminal  one,  requiring  to  be  strictly  con- 
strued. The  principle  is  elementary,  but  the  application 
here  sought  to  be  made  is  a  mistaken  one.  The  rule  of  strict 
construction  does  not  require  that  the  narrowest  technical 
meaning  be  given  to  the  words  employed  in  a  criminal  statute 
in  disregard  of  their  context  and  in  frustration  of  the  obvious 
legislative  intent.  United  States  v.  Hartwell,  6  Wall.  385. 
In  that  case,  answering  the  contention  that  penal  laws  are 
to  be  construed  strictly,  the  court  said  (p.  395) : 

"The  object  in  construing  penal,  as  well  as  other  statutes, 
is  to  ascertain  the  legislative  intent.  .  .  .  The  words 
must  not  be  narrowed  to  the  exclusion  of  what  the  legislature 
intended  to  embrace;  but  that  intention  must  be  gathered 
from  the'  words,  and  they  must  be  such  as  to  leave  no  room 
for  a  reasonable  doubt  upon  the  subject.  .  .  .  The  rule 
of  strict  construction  is  not  violated  by  permitting  the  words 
of  the  statute  to  have  their  full  meaning,  or  the  more  extended 
of  two  meanings,  as  the  wider  popular  instead  of  the  more 
narrow  technical  one ;  but  the  words  should  be  taken  in  such 
a  sense,  bent  neither  one  way  nor  the  other,  as  wiD  best  mani- 
fest the  legislative  intent." 


UNITED  STATES  v.  CORBETT.  243 

215  U.  S.  Opinion  of  the  Court. 

It  is  to  be  observed  that  the  rule  thus  stated  affords  no 
groimd  for  extending  a  penal  statute  beyond  its  plain  mean- 
ing. But  it  inculcates  that  a  meaning  which  is  within  the 
text  and  within  its  clear  intent  is  not  to  be  departed  from 
because,  by  resorting  to  a  narrow  and  technical  interpretation 
of  particular  words,  the  plain  meaning  may  be  distorted  and 
the  obvious  purpose  of  the  law  be  frustrated.  BoUes  v. 
OuiiTig  Co,,  175  U.  S.  262,  265,  and  especially  United  States 
V.  Union  Supply  Company,  decided  this  term,  ante,  p.  50. 

Indeed,  the  aptness  of  the  application  of  the  principle 
just  stated  to  the  case  in  hand  is  well  illustrated  by  the  fol- 
lowing considerations.  If  by  distorting  the  rule  of  strict 
construction  we  were  to  construe  the  words  of  the  statute, 
"any  agent  appointed  to  examine,"  so  as  to  exclude  the 
Comptroller  of  the  Currency,  the  principal  agent  appointed 
for  such  purpose,  by  the  same  method  we  should  be  com- 
pelled to  adopt  the  reasoning  of  the  court  below  and  to 
narrow  the  statute  so  as  to  exclude  the  intent  to  deceive  by 
false  entries  in  the  report,  an  agent  to  whom  the  report  was 
not  to  be  made  and  who  might  not  be  called  upon  to  examine 
the  same,  thus,  in  effect,  as  to  intent  to  deceive  any  agent, 
destroying  the  statute.  And  this  impossible  conclusion  at 
once  serves  to  point  out  the  correctness  of  the  interpretation 
of  the  statute  assumed  in  the  Cochran  case,  that  the  intent  to 
deceive,  for  which  the  statute  provides,  is  an  intent  to  de- 
ceive the  official  agents  concerned  in  overseeing  the  bank 
and  supervising  its  operation  and  the  conduct  of  its  busi- 
ness, including,  of  necessity,  the  Comptroller  of  the  Currency 
and  the  subordinate  agents  or  examiners  whom  the  statute 
authorized  him  to  appoint. 

2.  The  demurrer. 

Where  intent  is  an  essential  ingredient  of  a  crime  it  is 
settled  that  such  intent  may  be  charged  in  general  terms  and 
that  the  existence  of  the  intent  becomes,  therefore,  a  ques- 
tion to  be  determined  by  the  jury  upon  a  consideration  of 
all  the  facts  and  circumstances  of  the  case.    Evans  v.  United 


244  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

States,  153  U.  S.  584.  It  is,  of  course,  to  be  conceded  that 
where  the  facts  charged  to  have  been  done  with  criminal 
intent  are  of  such  a  nature  that  on  the  face  of  tHe  indictment 
it  must  result  as  a  matter  of  law  that  the  criminal  intent 
could  not  under  any  possible  circumstances  have  existed, 
the  charge  of  such  intent,  in  general  terms,  would  raise  no 
issue  of  fact  proper  to  go  to  a  jury.  It  was  upon  the  concep- 
tion that  the  facts  alleged  in  the  indictment  under  considera- 
tion excluded  the  possibility  under  any  circumstances  of  the 
existence  of  the  particular  criminal  intent  charged,  that  the 
court  below  was  led  to  sustain  the  demurrer.  The  court 
said: 

''The  indictment  also  charges  that  the  entries  were  made 
with  intent  to  injure  and  defraud  the  bank  itself,  but  how 
this  could  be  does  not  appear.  It  is  barely  possible  that 
some  harm  might  indirectly  have  come  to  the  bank  by  the 
publication  of  the  false  report  in  the  vicinity  of  the  place 
where  the  bank  was  located,  but  this  possibility  is  not  suffi- 
cient to  show  the  definite  intent  shown  by  the  statute.  The 
report  must  have  been  made  with  the  purpose  on  the  part 
of  those  signing  it  to  injure  and  defraud  the  bank.  The  re- 
port could  not  possibly  change  the  actual  condition  of  the 
bank,  and  a  false  report  showing  a  better  condition  than  in 
fact  existed  might  as  readily  be  a  benefit  to  the  bank  as  a 
detriment.  At  all  events,  the  detriment  would  be  merely 
speculative,  insufficient  to  afford  proof  of  a  positive  intent 
to  injure  and  defraud  the  bank." 

But  to  these  views  we  cannot  give  our  assent.  Because 
the  false  entries  in  the  report  showed  the  bank  to  be  in  a  more 
favorable  condition  than  it  was  in  truth  did  not  justify  the 
conclusion  that  the  entries  in  the  report  could  under  no  cir- 
cumstances have  been  made  with  the  intent  to  injure  the 
bank,  unless  it  be  true  to  say  that  it  must  follow,  as  a  matter 
of  law,  that  to  falsely  state  in  an  official  report  a  bank  to  be 
in  a  better  condition  than  it  really  is,  under  every  and  all 
circumstances  is  to  benefit  and  not  to  injure  the  bank.    But 


UNITED  STATES  v,  CORBETT.  246 

215  U.  S.  Opinion  of  the  Court. 

this  view  would  do  violence  to  the  statute,  which  exacts 
truthful  reports  upon  the  conception  that  the  knowledge 
by  the  oflScials  of  the  Government  of  the  true  condition  of 
the  bank  is  conducive  to  the  safeguarding  of  its  interests 
and  its  protection  from  injury  and  wrong.  It  was  undoubt- 
edly within  the  power  of  the  Comptroller  of  the  Currency, 
if  the  bank  was  out  of  line,  or  if  its  affairs  were  in  a  disordered 
or  precarious  condition,  or  if  its  officers  had  embarked  in 
transactions  calculated  to  injuriously  affect  the  financial 
condition  of  the  bank,  to  apply  a  corrective,  and  thus  save 
the  bank  from  injury  and  future  loss.  Certainly,  as  a  matter 
of  law,  it  cannot  be  held,  although  such  transactions  were 
concealed  in  a  report  made  to  the  Comptroller  by  false  state- 
ments exhibiting  a  more  favorable  condition  of  the  bank 
than  would  have  appeared  if  the  truth  had  been  stated,  that 
no  intent  to  injure  the  bank  could  possibly  be  imputed,  even 
although  the  necessary  effect  of  the  false  statement  was  to 
prevent  the  ComptroDer  from  exerting  the  powers  conferred 
upon  him  by  law  for  the  protection  of  the  bank  from  injury. 
And  these  considerations  also  effectually  dispose  of  the 
theory  that  the  acts  charged  to  have  been  falsely  reported, 
in  and  of  themselves,  were  of  such  a  character  as  to  exclude 
the  possibility  of  a  criminal  intent  to  injure  the  bank.  The 
counts  charged  false  entries  as  to  the  amount  of  bad  debts 
due  the  bank,  as  to  the  suspended  paper  held  by  the  bank, 
as  to  the  amoimt  due  the  bank  by  its  president  as  indorser, 
guarantor  or  otherwise,  and  as  to  the  assets  of  the  bank, 
by  reporting  that  it  owned  various  pieces  of  real  estate  which 
it  really  only  held  as  security.  We  are  of  opinion  that  the 
alleged  false  statements  did  not  so  exclude  the  poasibility 
of  an  intention  to  injure  the  bank  as  to  justify  so  declaring 
as  a  matter  of  law,  and  that  the  case  should  have  been  sub- 
mitted to  a  jury  to  determine  the  question  of  intent  in  the 
light  of  all  the  facts  and  circumstances  existing  at  the  time 
of  the  making  of  the  alleged  false  entries. 

Reversed, 


246  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

Mr.  Justice  McKenna  and  Mr.  Justice  Dat  do  not  think 
the  Comptroller  is  within  the  words  ''any  agent,"  and  dis- 
sent from  that  ruling.    In  other  respects  they  concur. 


■•■ 


LATHROP,  SHEA  &  HENWOOD  COMPANY  v,  INTE- 
RIOR CONSTRUCTION  AND  IMPROVEMENT  COM- 
PANY. 

ERROR  TO  THE  CIRCUIT  COURT  OF  THE  UNITED  STATES  FOR  THE 

WESTERN  DISTRICT  OF  NEW  YORK 

No.  2.    Argued  October  22,  1909.— Decided  December  6,  1909. 

Where  plaintiff  in  good  faith  insists  on  the  joint  liability  of  all  the 
defendants  until  the  close  of  the  trial,  the  dismissal  of  the  complaint 
on  the  merits  as  to  the  defendants  who  are  citizens  of  plaintiff's 
State  does  not  operate  to  make  the  cause  then  removable  as  to  non- 
resident defendants  and  to  prevent  the  plaintiff  from  taking  a  verdict 
against  the  defendants  who  might  have  removed  the  cause  had  they 
been  sued  alone,  or  if  there  had  originally  been  a  separable  contro- 
versy as  to  them. 

The  facts,  which  involve  the  validity  of  the  removal  of  a 
cause  to  the  Federal  court,  are  stated  in  the  opinion. 

Mr.  darence  M.  BushneU  for  plaintiff  in  error. 

Mr.  C.  Walter  Ariz  for  defendant  in  error. 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

The  parties  were  respectively  plaintiff  and  defendant  in 
the  court  below,  and  we  shall  so  designate  them. 

The  plaintiff  brought  suit  against  the  defendant  and  the 
Kttsburg,  Shawmont  and  Northern  Railroad  Company  in 
the  Supreme  Court  of  Erie  County,  New  York,  for  the  sum 


LATHROP,  SHEA  &  CO.  v.  INTERIOR  CONSTR'N  CO.  247 
215  U.  S.  Opinion  of  the  Court. 

of  $43,038.88,  upon  a  contract  entered  into  between  the  de- 
fendant, the  Interior  Construction  and  Improvement  Com- 
pany, and  the  plaintiff,  by  which  the  Construction  Company 
agreed  to  construct  certain  portions  in  Pennsylvania  and  New 
York  of  the  line  of  the  railroad  company,  and  for  materials 
and  the  use  of  certain  articles  by  the  railroad.  It  is  alleged 
in  the  petition  of  the  plaintiff  that  the  railroad  company  was 
organized  by  the  consolidation  of  other  railroad  companies, 
and  for  the  purpose  of  carrying  out  the  plans  of  such  consoli- 
dation undertook  the  construction  of  a  railroad  from  certain 
points  in  Pennsylvania  to  the  village  of  Angelica  in  the  State 
of  New  York.  That  in  pursuance  of  this  purpose  the  railroad 
company  entered  into  a  contract  with  the  Construction  Com- 
pany, and  in  payment  for  the  construction  of  the  railroad 
agreed  to  issue  and  did  issue  to  the  company  its  stocks  and 
bonds,  which  were  largely  in  excess  of  cost  of  construction. 
That  the  Construction  Company  was  organized  solely  for  the 
purpose  of  building  the  railroad  and  to  secure  to  the  promoters 
and  organizers  thereof  the  profits  to  be  made  by  the  construc- 
tion of  the  railroad  and  the  manipulation  of  securities.  That 
the  oflScers,  directors  and  owners  of  the  majority  of  the  capital 
stock  of  the  railroad  had  like  relation  to  the  Construction 
Company  and  the  management  of  the  latter  was  controlled 
by  them.  And  it  is  averred  that  the  Construction  Company 
was  the  agent  and  representative  of  the  railroad  company, 
and  that  the  latter  became  and  is  responsible  and  liable  for 
the  acts  and  obligations  of  the  Construction  Company.  Due 
performance  by  plaintiff  of  its  contract  is  alleged. 

It  is  further  alleged  that  the  railroad  company  is  a  New 
York  corporation  and  the  Construction  Company  is  a  New 
Jersey  corporation. 

There  was  personal  service  of  the  summons  on  the  rail- 
road company  on  the  twenty-fourth  of  October,  1904.  That 
company  appeared  and  answered.  The  service  upon  the 
Construction  Company  was  made  on  the  sixteenth  of  Novem- 
ber, 1904,  by  serving  the  summons  on  the  secretary  of  state 


248  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

of  the  State  of  New  York.  The  Construction  Company  made 
a  motion  to  set  aside  the  service  of  summons  on  the  ground 
that  it  was  irregular  and  void.  The  company  made  no  other 
appearance.  The  motion  was  denied,  and  appeal  was  taken 
to  the  Appellate  Division  of  the  court.  That  court  afiirmed 
the  ruling,  and  denied  leave  to  appeal  to  the  Court  of  Appeals. 
The  Construction  Company's  time  to  answer  was  extended 
to  February  6,  1905,  and,  upon  motion  of  the  company,  the 
case  was  removed  to  the  United  States  Circuit  Court  on  the 
ground  of  a  separable  controversy,  but  was  subsequently  re- 
manded upon  motion  of  the  plaintiff.  The  motion  to  set 
aside  the  service  of  summons  was  denied.  Lathrop,  Shea  & 
Henwqod  Co.  v.  Interior  Construction  &  Improvement  Co., 
135  Fed.  Rep.  619.  Upon  the  return  of  the  case  to  the  state 
court,  a  motion  was  made  by  the  Construction  Company  to 
extend  its  time  to  appear  and  answer  in  the  action  until 
twenty  days  after  the  determination  of  the  motion  then  pend- 
ing, made  in  behalf  of  the  railroad  company,  to  compel  the 
plaintiff  to  elect  which  defendant  it  would  proceed  against, 
to  the  exclusion  of  the  other.  The  motion  was  denied,  also 
that  made  by  the  railroad  company.  The  referee  to  whom 
the  issues  raised  by  the  railroad  company  had  been  referred, 
to  hear  and  determine,  reported  dismissing  the  complaint 
as  to  that  company,  and  judgment  thereon  was  entered  on 
the  twenty-sixth  of  October,  1905.  The  judgment  was  af- 
firmed by  the  Appellate  Division  of  the  Supreme  Court.  But, 
pending  the  appeal,  upon  motion  of  the  Construction  Com- 
pany the  case  was  removed  to  the  Circuit  Court,  but  that 
court  remanded  the  case,  sajnng  that  "until  the  determina- 
tion of  the  appeal  by  the  co-defendant,  in  the  absence  of  fraud 
or  improper  joinder  of  defendants  for  the  purpose  of  interfer- 
ing with  or  obstructing  the  Construction  Company's  right  of 
removal,  it  is  not  thought  that  a  separable  controversy  ex- 
ists." Lathrop,  Shea  &  Henwood  Co,  v.  Interior  Construction 
cfe  Improvement  Co.,  143  Fed.  Rep.  687. 
On  the  twenty-third  of  September,  1905,  an  affidavit  of  the 


LATHROP,  SHEA  &  CO.  v.  INTERIOR  CONSTR'N  CO.  249 
215  U.  S.  Opinion  of  the  Court. 

default  of  the  Construction  Company  having  been  filed,  an 
order  was  made  in  the  Supreme  Court,  reciting  the  fact,  and 
the  facts  showing  such  default,  and  appointing  a  referee  "to 
take  proofs  of  the  cause  of  action  set  forth  in  the  plaintiff's 
complaint."  The  referee  reported  that  there  was  due  plain- 
tiff the  sum  of  $47,323.91.  The  report  was  confirmed  and 
judgment  entered  for  that  amoimt. 

Subsequently,  the  Appellate  Division  having  sustained  the 
judgment  dismissing  the  action  as  to  the  railroad  company, 
the  case  was  again,  on  the  motion  of  the  company,  removed 
to  the  Circuit  Court  and  a  motion  made  in  that  court  to  set 
aside  the  service  of  summons  on  the  Construction  Company 
and  to  vacate  the  judgment.  Concurrently  with  that  motion 
plaintiff  moved  to  remand  the  case  to  the  state  court.  The 
motion  of  the  Construction  Company  was  granted  and  the 
action  dismissed  for  want  of  jurisdiction  over  the  company. 
Laihrop,  Shea  &  Henwood  Co,  v.  Interior  Construction  & 
Improvement  Co.,  150  Fed.  Rep.  666. 

The  motion  was  granted  on  the  ground  that  the  facts 
showed  that  the  company  had  ceased  to  do  business  in  the 
State  and  held  no  property  therein. 

It  will  be  seen  that  a  question  of  jurisdiction  alone  is  pre- 
sented, the  Circuit  Court  certifying  "that  no  evidence  was 
introduced  upon  the  hearing  of  the  motion,  the  issues  being : . 

"I.  Whether  this  court  had  obtained  jurisdiction  over  this 
defendant  by  the  service  of  a  summons  upon  the  secretary 
of  state  of  the  State  of  New  York  as  provided  by  section  16 
of  the  General  Corporation  Law  of  said  State  of  New  York. 

"II.  Whether  the  proceedings  in  and  the  decisions  of  the 
courts  of  the  State  of  New  York  construing  said  corporation 
law  were  controlling  upon  this  court. 

"III.  Whether  the  proceedings  taken  by  said  defendant 
in  said  state  court  are  res  adjudiccUa  upon  defendant." 

But  there  is  a  question  of  jurisdiction  paramount  to  that 
passed  on  by  the  Circuit  Court.  It  will  be  observed  that  the 
action  against  the  railroad  company  was  not  dismissed  by 


250  OCTOBER  TERM,  1909. 

Opinkm  of  the  GcNirt.  215  U.S. 

plaintiff,  but,  against  its  contention,  by  the  Supreme  Court 
of  the  State,  whose  judgment  was  affirmed,  also  against  its 
contention,  by  the  Appellate  Division  of  that  court.  This 
did  not  take  jurisdiction  from  the  state  court  to  proceed 
against  the  Construction  Company  nor  make  the  judgment 
against  it  invalid. 

It  was  held  in  Powers  v.  C.  <fc  0.  Ry.,  169  U.  S.  92,  that  a 
case  may  become  removable  after  the  time  prescribed  by 
statute;  upon  the  ground  of  a'  separate  controversy  upon  the 
subsequent  discontinuance  of  the  action  by  the  plaintiff 
against  the  defendants,  citizens  of  the  same  State  with  the 
plaintiff.  In  Whitamb  v.  Smithsan,  175  U.  S.  635,  637,  the 
Powers  case  was  commented  on,  and  a  different  effect  was 
ascribed  to  a  ruUng  of  the  court  dismissing  the  action  as  to 
one  of  the  defendants  than  to  a  discontinuance  by  the  volim- 
tary  act  of  the  plaintiff.  The  action  was  against  Whitcomb 
and  another  who  were  receivers  of  the  Wisconsin  Central 
Company  and  the  Chicago  Great  Western  Railway  Company 
for  personal  injuries  received  by  Smithson  while  serving  the 
Chicago  Great  Western  Railway  Company  as  a  locomotive 
fireman  in  a  collision  between  the  locomotive  on  which  he 
was  at  work  and  another  locomotive  operated  by  the  re- 
ceivers appointed  by  United  States  Circuit  Court.  The  case 
came  to  trial,  and  at  the  close  of  the  testimony  counsel  for 
the  Chicago  Great  Western  Railway  Company  moved  that 
the  jury  be  ''instructed  to  return  a  verdict  in  behalf  of  that 
defendant,"  which  motion  the  court  granted.  An  applica- 
tion was  then  made  by  the  receivers  to  remove  the  case  to  the 
Circuit  Court  of  the  United  States,  which  was  denied.  The 
court  instructed  the  jury  to  return  a  verdict  for  the  railway 
company,  which  was  done,  and  thereupon  the  case  went  to 
the  jury,  who  returned  a  verdict  against  the  receivers,  upon 
which  judgment  was  entered.  The  judgment  was  affirmed 
by  the  Supreme  Court  of  Minnesota,  to  which  a  writ  of  error 
was  issued  from  this  court.  Passing  on  motions  to  dismiss  or 
affirm  and  answering  the  contention  of  the  receivers  that  they 


LATHROP,  SHEA  &  CO.  v,  INTERIOR  CONSTR'N  CO.  251 
215  U.  S.  Opinion  of  the  Court. 

acquired  the  right  of  removal  as  though  they  were  the  sole 
defendants,  when  the  court  directed  a  verdict  in  favor  of  the 
railway  company,  this  court  said  by  the  Chief  Justice:  "This 
might  have  been  so  if  when  the  cause  was  called  for  trial  in 
the  state  court,  plaintiff  had  discontinued  his  action  against 
the  railway  company,  and  thereby  elected  to  prosecute  it 
against  the  receivers  solely,  instead  of  prosecuting  it  on  the 
joint  cause  of  action  set  up  in  the  complaint  against  all  of  the 
defendants.  Powers  v.  Chesapeake  &  Ohio  Railway,  169  U.  S. 
92.  But  that  is  not  this  case.  The  joint  liability  was  insisted 
on  here  to  the  close  of  the  trial,  and  the  non-liability  of  the 
railway  company  was  ruled  in  invitum.  .  .  .  This  was 
a  ruling  on  the  merits,  and  not  a  ruling  on  the  question  of 
jurisdiction.  It  was  adverse  to  plaintiff,  and  without  his 
assent,  and  the  trial  court  rightly  held  that  it  did  not  operate 
to  make  the  cause  then  removable,  and  thereby  to  enable 
the  other  defendants  to  prevent  plaintiff  from  taking  a  ver- 
dict against  them." 

The  Whitcomb  case  and  the  Powers  case  are  conmiented  on 
and  impliedly  approved  in  Chesapeake  &  Ohio  Ry.  Co.  v. 
Dixon,  179  U.  S.  131,  138.  And  again  in  Kansas  City  Svbur- 
ban  Belt  Ry,  Co.  v.  Herman,  187  U.  S.  63;  FrUden  v.  Boatmen's 
Bank,  212  U.  S.  364,  372.  See  also  Alabama  Great  SoiUhem 
Ry.  v.  Thompson,  200  U.  S.  206. 

It  follows  from  these  views  that  the  order  of  the  Circuit 
Court  setting  aside  the  service  of  the  summons  on  the  Con- 
struction Company  and  vacating  the  judgment  against  it  and 
dismissing  the  action  must  be 

Reversed  and  the  caiLse  remanded,  with  directions  to  grant  the 
motion  of  plaintiff  to  remand  the  case  to  the  Supreme  Court 
of  the  Stale  of  New  York.   So  ordered. 


252  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 


VIRGINIA-CAROLINA    CHEMICAL    COMPANY   v. 

KIRVEN. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  SOUTH 

CAROLINA. 

No.  18.    Argued  November  2,  1909.-— Decided  December  6,  1909. 

The  claim  of  plaintiff  in  error  that  proper  and  full  credit  was  not 
given  to  a  judgment  in  the  Federal  court,  if  seasonably  made, 
raises  a  Federal  question  and  if  the  decision  of  the  state  court  is 
in  effect  against  such  claim  this  court  has  jurisdiction. 

While  the  bar  of  a  judgment  in  another  action  for  the  same  claim  or 
demand  between  the  same  parties  extends  to  not  only  what  was, 
but  what  mig^t  have  been,  pleaded  or  litigated  in  the  first  action, 
if  the  second  action  is  upon  a  different  claim  or  demand  the  bar 
of  the  first  judgment  is  limited  to  that  which  was  actually  litigated. 

Under  §  914,  Rev.  Stat.,  requiring  the  practice  in  the  Federal  courts 
to  conform  as  near  as  may  be  to  the  practice  in  the  state  courts, 
the  defendant  in  an  action  in  the  United  States  Circuit  Court  in 
South  Carolina  is  not  required  to  plead  all  counterclaims  and  offsets 
as  the  state  courts  have  not  so  construed  the  provisions  of  §§  170, 
171  of  the   Code  of  Procedure  of  that  State. 

When  the  question  is  the  effect  which  should  have  been  given  by  the 
state  court  to  a  judgment  of  the  United  States  Circuit  Court,  this 
court  is  not  concerned  with  the  extent  to  which  the  state  court 
may  have  subsequently  modified  its  view  if  it  has  not  questioned 
the  correctness  of  its  decision  in  the  case  at  bar. 

77  So.  Car.  493,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  P.  A.  WiUcox  and  Mr.  Frederic  D.  McKenney,  with 
whom  Mr.  F.  L.  WiUcox  and  Mr.  Henry  E.  Davis  were  on 
the  brief,  for  plaintifif  in  error: 

The  question  litigated  in  the  present  suit  was  rendered 
res  judicata  by  the  judgment  in  the  Federal  coiut  as  it  was 
matter  that  should  have  been  set  up  as  counterclaim.  Such 
is  the  rule  in  South  Carolina,  §§  170,  171,  Code  of  Procedure, 
and  under  §914,  Rev.  Stat.,  the  practice  of  the  Federal 


VIRGINIA-CAROLINA  CHEMICAL  CO.  v.  KIRVEN.  253 
215  U.  S.  Argument  for  Plaintiff  in  Error. 

courts  must  conform  thereto.  See  Simonton,  Fed.  Courts, 
§§  106,  152,  157;  Haygood  v.  Boney,  43  S.  Car.  63;  Schunk 
V.  Moline,  147  U.  S.  500;  Pickham  v.  Manufacturing  Co.,  77 
Fed.  Rep.  663;  Turner  v.  Association,  101  Fed.  Rep.  308; 
Partridge  v.  Insurance  Co.,  15  WaJL  573;  1  Van  Fleet  on 
Former  Adjudication,  §§  168,  172;  23  Cyc.  1202;  Black  on 
Judgments,  §767. 

Where  a  party  has  an  opportunity  to  litigate  an  issue  in 
defense  and  fails  to  do  so  the  judgment  shuts  off  that  de- 
fense, and  if  the  same  issues  are  being  litigated  in  two  courts 
the  first  final  judgment  will  render  the  issues  res  judicata  in 
the  other  court.  Boatmen's  Bank  v.  Fritzlein,  135  Fed.  Rep. 
650;  24  Am.  &  Eng.  Ency.,  2d  ed.,  833;  17  Ency.  of  P.  &  P. 
265. 

In  determining  the  question  of  res  judicata  of  an  issue 
by  judgment  in  the  Federal  court  this  coiut  will  be  governed 
by  its  own  decisions  and  not  by  those  of  the  courts  of  the 
State.  The  right  given  by  a  judgment  in  the  Federal  court 
is  one  arising  under  the  Constitution  and  cannot  be  taken 
away  by  the  State,  and  this  court  has  jurisdiction.  Crescent 
City  Co.  V.  Butchers'  Union,  120  U.  S.  141;  Pittsburg  R.  R.  Co. 
V.  Long  Island  Trust  Co.,  172  U.  S.  493;  Dowdl  v.  Applegate, 
152  U.  S.  327;  Werlein  v.  New  Orleans,  177  U.  S.  390;  Na- 
tional  Foundry  v.  Supply  Co.,  183  U.  S.  216;  Cromwell  v.  Sac 
County,  94  U.  S.  351. 

The  estoppel  resulting  from  the  thing  adjudged  does  not 
depend  on  whether  there  is  the  same  demand  but  on  whether 
the  second  demand  has  been  previously  concluded  by  judg- 
ment between  the  same  parties.  New  Orleans  v.  Citizens' 
Bank,  167  U.  S.  371,  396;  Supply  Co.  v.  MobUe,  186  U.  S. 
212,  217;  Bank  v.  Frankfort,  191  U.  S.  499;  Fayerweather  y. 
Ritch,  195  U.  S.  276,  301 ;  Gunter  v.  Atlantic  Coast  Line,  200 
U.  S.  273,  290;  United  States  v.  California  &  Oregon  Land 
Co.,  192  U.  S.  355;  Northern  Pac.  Ry.  Co.  v.  Slaght,  205  U.  S. 
122;  Stockton  v.  Ford,  18  How.  418;  Northern  Pacific  Ry.  Co. 
v.  United  States,  168  U.  S.  1;  and  see  also  Price  v.  Dewey,  11 


254  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  Error.  215  U.  S. 

Fed.  Rep.  104;  Nemeity  v.  Naylar,  100  N.  Y.  562;  Reichert 
V.  Krass,  41  N.  E.  Rep.  835;  Blmr  v.  BarOett,  lb  N.  Y.  150; 
Dunham  v.  Bower,  77  N.  Y.  76;  Gibson  v.  Bingham,  43  Ver- 
mont, 410;  Rew  v.  School  District,  106  Am.  St.  Rep.  282. 

In  reaching  its  judgment  upholding  the  validity  of  the 
note  the  Federal  court  necessarily  determined  there  was  no 
failure  of  consideration,  and  that  is  the  foundation  of  the 
action  in  the  state  court;  prior  to  this  case  the  decisions  of 
the  state  court  supported  the  principle  contended  for.  Wil- 
Umghliy  v.  Railroad  Co.,  52  S.  Car.  175;  Ryan  v.  Assodalian, 
50  S.  Car.  187. 

This  action  cannot  be  sustained  without  depriving  plain- 
tiff in  error  of  the  benefit  of  a  judgment  of  the  Federal  court. 

In  further  support  of  the  contentions  of  plaintiff  in  error 
see  Mooklar  v.  Lewis,  40  Indiana,  1;  Shepherd  v.  Temple,  3 
N.  H.  455,  and  the  decision  of  the  Supreme  Court  of  South 
Carolina  rendered  since  this  case  was  decided.  Greenvxfod 
Drug  Co,  v.  Bromxmia  Co,,  81  S.  Car.  516. 

Mr,  Charles  A .  Douglas,  with  whom  Mr.  W.  F.  Stever^on  and 
Mr.  E.  0.  Woods  were  on  the  brief,  for  defendant  in  error: 

This  court  is  without  jurisdiction.  The  point  that  full 
faith  and  credit  was  not  given  to  the  judgment  of  the  Federal 
court  does  not  appear  in  the  record  and  a  general  statement 
is  not  sufficient,  and  questions  other  than  Federal  are  involved. 

The  first  judgment  is  not  res  judicata  in  regard  to  the 
question  in  the  second  suit.  The  rule  requiring  a  party  to 
assert  all  defenses  does  not  apply  to  defendant's  claims 
against  plaintiff  by  way  of  counterclaims  and  set-off.  1  Van 
Fleet,  §§168-172;  Black  on  Judgments,  §768;  Davis  v. 
Hedges,  L.  R.  6  Q.  B.  687;  Kennedy  v.  Davisson,  33  S.  E.  Rep. 
292;  Riley  v.  Hole,  33  N.  E.  Rep.  491;  Cmner  v.  Vamey,  10 
Gray,  231;  Myrian  v.  Woodcock,  104  Massachusetts,  326; 
Gilmare  v.  Williams,  38  N.  E.  Rep.  976;  19  Ency.  P.  &  P. 
731;  24  Am.  &  Eng.  Ency.  785.  The  questions  of  failure  of 
consideration  and  damages  to  crop  were  not  involved  in  the 


VIRGINIA-CAROLINA  CHEMICAL  CO.  v.  KIRVEN.   255 
215  U.  S.  Opinion  of  the  Court. 

first  suit  and  the  judgment  was  not  res  judicata  in  regard  to 
those  issues. 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

This  case  involves  the  question  as  to  whether  the  state 
courts  gave  due  force  and  effect  to  a  judgment  of  the  Circuit 
Court  of  the  United  States  for  the  District  of  South  Carolina 
in  an  action  brought  by  plaintiff  in  error  against  the  defend- 
ant in  error. 

The  action  in  the  case  at  bar  was  brought  by  defendant  in 
error,  whom  we  shall  call  Kirven,  against  plaintiff  in  error, 
whom  we  shall  caD  the  Chemical  Company,  for  damages  re- 
sulting from  the  defective  manufacture  of  certain  fertilizers 
bought  by  Kirven  of  the  Chemical  Company,  through  one 
McCall,  to  whom  he  gave  his  note  for  twenty-two  hundred 
and  twenty-eight  dollars.    The  allegation  of  complainant  is: 

"That  the  said  fertilizers,  to  wit,  acid  phosphate  and  dis- 
solved bone,  had  been  manufactured  with  such  gross  negli- 
gence and  want  of  skill  that,  instead  of  being  of  advantage 
to  the  crops  to  which  they  were  applied,  they  destroyed  the 
same  in  large  part,  and  were  not  only  worthless  to  the  plain- 
tiff, but,  by  destroying  his  crops,  damaged  him  very  heavily, 
and  by  the  injury  which  was  inflicted  on  his  crop  of  cotton 
and  com  by  fertilizers  which  were  manufactured  and  sold 
for  use  upon  them,  he  was  damaged  in  the  sum  of  $1,995." 

The  Chemical  Company,  in  its  answer,  set  up,  among  other 
defenses,  the  judgment  of  the  Circuit  Court  of  the  United 
States.  The  plea  was  not  sustained  and  judgment  was  en- 
tered for  Kirven  for  the  amount  sued  for,  which  was  affirmed 
by  the  Supreme  Court  of  the  State.  Kirven  v.  Virginia- 
Cardina  Chemical  Co,,  77  S.  Car.  493. 

The  facts,  so  far  as  necessary  to  be  stated,  are  as  follows: 
The  Chemical  Company,  being  a  New  Jersey  corporation, 
brought  action  against  Kirven  in  the  Circuit  Court  of  the 
United  States  for  the  District  of  South  Carolina  on  the  note 
before  mentioned.     Kirven,  among  other  defenses,  set  up 


266  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

that  the  note  was  given  for  fertilizers,  "for  which  he  agreed 
to  pay  a  sound  price,  which  is  set  forth  in  the  note  sued  upon, 
and  were  purchased  for  the  use  of  the  defendant  himself 
and  his  tenants  and  customers  in  making  a  crop  for  the 
year  in  which  the  said  note  was  given,  but  the  said  fertilizers 
were  so  unskillfully  manipulated  and  manufactured  and 
prepared,  and  were  of  such  inferior  quality,  that  instead  of 
being  a  benefit  to  the  crops  of  defendant  and  his  tenants 
and  customers,  to  whom  he  furnished  the  same,  they  were 
deleterious  and  destructive  to  the  crops,  and  destroyed  the 
same  in  large  part,  and  there  was  an  entire  failure  of  con- 
sideration to  the  defendant  for  said  note." 

Kirven  subsequently  filed  a  supplementary  answer,  in 
which  he  omitted,  the  Chemical  Company  not  objecting, 
the  defense  above  set  out,  but  pleaded  as  a  counterclaim 
certain  proceedings  instituted  by  the  Chemical  Company 
in  North  Carolina,  in  which  it  attached  certain  cotton  belong- 
ing to  Kirven,  sold  the  same  and  "  applied  and  appropriated 
the  proceeds  to  its  own  use  and  benefit."  The  value  of  the 
cotton  and  the  amount  "so  seized  and  appropriated"  were 
alleged  to  be  twenty-four  hundred  and  fifty  dollars  ($2,450.00) . 

Kirven,  when  testifying  as  to  the  purchase  of  the  fertilizers, 
said:  "I  did  not  know  anything,  until  later  on,  there  was  a 
complete  destruction  of  my  crop."  Counsel  for  the  company 
objected  "to  the  latter  clause,  on  the  ground  that  that  whole 
question  is  taken  out  of  the  complaint."  The  objection  was 
sustained  and  the  answer  stricken  out.  The  Chemical  Com- 
pany recovered  judgment  for  nine  hundred  eleven  doUars 
and  seven  cents  ($911.07). 

A  motion  is  made  to  dismiss  the  writ  of  error,  on  the 
grounds  (1)  that  the  assignment  of  errors  in  the  Supreme 
Court  of  the  State  lacked  certainty  of  specification,  as  it  only 
stated  that  the  refusal  by  the  trial  court  to  give  proper  and 
full  credit  to  the  judgment  of  the  Circuit  Court,  "thereby 
denied  to  the  defendant  [the  Chemical  Company]  a  right 
arising  under  the  authority  of  the  United  States."    This,  it 


VIRGINIA-^JAROLINA  CHEMICAL  CO.  v.  KIRVEN.   257 

215  U.  S.  Opinion  of  the  Court. 

is  contended,  is  not  suflBcient  to  raise  a  Federal  right,  and 
the  following  cases  are  cited:  Chicago  &  N.  W.  Ry.  Co.  v. 
Chicago,  164  U.  S.  4.54;  Clarke  v.  McDade,  165  U.  S.  168; 
Miller  v.  Cornwall  R.  R.  Co,,  168  U.  S.  131 ;  Harding  v.  Illinois, 
196  U.  S.  78;  Thomas  v.  State  oflcrwa,  209  U.  S.  258. 

The  cases  are  not  applicable.  In  neither  of  them  was  the 
contention  under  the  Constitution  of  the  United  States 
identified  or  passed  upon.  In  the  case  at  bar  there  is  a 
definite  right  arising  under  the  authority  of  the  United  States 
and  the  decision  of  the  court  was  in  effect  against  it.  The 
case  falls  within  Crescent  City  &c.  Co.  v.  Butchers*  Union  &c, 
Co,,  120  U.  S.  141;  Pittsburg  &c,  Ry,  v.  Loan  &  Trust  Co,, 
172  U.  S.  493;  Deposit  Bank  v.  Frankfort,  191  U.  S.  499. 

The  question  on  the  merits  is  a  narrow  one.  Its  solution 
depends  upon  the  application  of  well-known  principles — 
too  well  known  to  need  much  more  than  statement.  It  is 
established  that  the  bar  of  a  judgment  in  another  action  for 
the  same  claim  or  demand  between  the  same  parties  extends 
to  not  only  what  was  pleaded  or  litigated  in  the  first  action, 
but  what  might  have  been  pleaded  or  litigated.  If  the  second 
action  is  upon  a  different  claim  or  demand,  the  bar  of  the 
judgment  is  limited  to  that  which  was  actually  litigated  and 
determined.  Cromwell  v.  Sac  County,  94  U.  S.  351;  Northern 
Pacific  Ry,  Co,  v.  Slaght,  205  U.  S.  122,  Of  course,  as  con- 
tended by  the  Chemical  Company,  there  are  some  defenses 
which  are  necessarily  negatived  by  the  judgment — ^are  pre- 
sumed never  to  have  existed.  These  are  such  as  go  to  the 
validity  of  the  plaintiff's  demand  in  its  inception  or  show 
its  performance,  such  as  is  said  in  Cromicell  v.  Sac  County, 
supra,  as  forgery,  want  of  consideration  or  payment.  But 
this  court  has  pointed  out  a  distinction  between  such  de- 
fenses and  those  which,  though  arising  out  of  the  transaction 
constituting  plaintiff's  claim,  may  cut  it  down  or  give  rise 
to  an  antagonistic  demand.  Of  such  defenses  we  said,  speak- 
ing through  Mr.  Justice  Holmes  in  Merchants*  Heat  &  Light 
Co.  V.  Clow  &  Sons,  204  U.  S.  286,  290,  that  the  right  to 
VOL.  ccx\^ — 17 


258  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

plead  them  as  a  defense  "is  of  modern  growth,  and  is  merely 
a  convenience  that  saves  bringing  another  suit,  not  a  necessity 
of  the  defense.''  And  showing  how  essentially  they  were 
independent  of  the  plaintiff's  demand,  although  they  might 
be  of  a  defense  to  it,  it  was  said  that  when  the  defendant 
set  them  up  he  became  a  plaintiff  in  his  turn  and  subject  to 
a  jurisdiction  that  he  otherwise  might  have  denied  and  re- 
sisted. The  principle  was  applied  to  recoupment  as  well  as 
to  set-off  proper.  Even  at  common  law,  it  was  said  (p.  289), 
"since  the  doctrine  has  been  developed,  a  demand  in  recoup- 
ment is  recognized  as  a  cross  demand  as  distinguished  from 
a  defense.  Therefore,  although  there  has  been  a  difference 
of  opinion  as  to  whether  a  defendant  by  pleading  it  is  con- 
cluded by  the  judgment  from  bringing  a  subsequent  suit  for 
the  residue  of  his  claim,  a  judgment  in  his  favor  being  im- 
possible at  common  law,  the  authorities  agree  that  he  is  not 
concluded  by  the  judgment  if  he  does  not  plead  his  cross 
demand,  and  that  whether  he  shall  do  so  or  not  is  left  wholly 
to  his  choice."  This  doctrine  is  attempted  to  be  avoided 
by  insisting  that  Kirven's  plea  in  the  Circuit  Court  and  his 
cause  of  action  in  the  case  at  bar  is  an  assertion  of  a  want 
of  consideration  for  the  note,  and,  it  is  urged,  brings  the  case 
under  one  of  the  defenses  mentioned  in  Cromwell  v.  Sac 
County  J  supra,  which  would  have  defeated  recovery  on  the 
note,  and  that  the  judgment  obtained  necessarily  negatives 
the  facts  upon  which  Kirven  now  bases  his  cause  of  action. 
"Call  it  what  he  may  please,"  the  Chemical  Company  says, 
"the  basis  of  Kirven's  claim  in  this  suit  is  an  alleged  failure 
of  consideration  of  such  great  degree  that  it  amounted  to 
positive  viciousness,  which  would  have  been  a  perfect  de- 
fense to  the  suit  in  the  United  States  Court."  It  may  be, 
indeed,  that  such  "viciousness"  could  have  been  set  up  in 
the  action  in  the  Circuit  Court,  but  it  would  be  to  confound 
distinctions  that  have  always  been  recognized,  and  the  effect 
of  which  are  pointed  out  in  Merchants'  Heat  &  Light  Co.  v. 
Clow  &  Sons,  supra,  to  conclude  that  the  judgment  recovered 


VIRGINIA-CAROLINA  CHEMICAL  CO.  v.  KIRVEN.  259 
215  U.  S.  Opinion  of  the  Court. 

negatives  the  existence  of  that  "viciousness,"  or  the  dam- 
ages which  were  consequent  to  it.  This  was  the  view  taken 
by  the  Supreme  Court  of  the  State,  that  court  deciding  that 
the  cause  of  action  in  the  Circuit  Court  and  that  in  the  case 
at  bar  were  upon  different  claims  or  demands — "one  being 
upon  a  promissory  note,  and  the  other  for  unliquidated  dam- 
ages," arising  from  the  destruction  of  Kirven's  crops.  And 
the  Supreme  Court  also  decided,  that  Kirven  withdrew  the 
defense  based  on  the  damages  to  him.  It  was  omitted,  as  we 
have  seen,  from  the  supplementary  answer.  Testimony  in 
regard  to  it  was  excluded  upon  the  objection  of  the  Chemical 
Company,  and  there  is  support  for  the  contention  that  the 
company  is  estopped  to  urge  that  a  defense  which  was  ex- 
cluded upon  its  objection  was  involved  in  the  action  and 
concluded  by  the  judgment. 

It  is,  however,  contended  by  the  Chemical  Company  that 
whether  new  matter  constitutes  a  defense  or  counterclaim 
under  §§  170,  171  of  the  Code  of  Procedure  of  South  Caro- 
lina (inserted  in  the  margin  ^),  it  must  be  set  up  by  a  de- 
fendant in  his  answer  and  cannot  be,  if  not  set  up,  used  as 
an  independent  cause  of  action.  It  is  also  contended  that 
this  being  the  practice  in  the  state  courts,  by  virtue  of  the 

^  Sec.  170.  The  answer  of  the  defendant  must  contain: 

'M.  A  general  or  specific  denial  of  each  material  allegation  of  the 
complaint  controverted  by  the  defendant,  or  of  any  knowledge  or 
information  thereof  sufficient  to  form  a  belief. 

"2.  A  statement  of  any  new  matter  constituting  a  defense  or 
counterclaim,  in  ordinary  and  concise  language,  without  repetition." 

Sec.  171.  The  counterclaim  mentioned  in  the  last  section  must  be 
one  existing  in  favor  of  the  defendant  and  against  a  plaintiff,  between 
whom  a  several  judgment  might  be  had  in  the  action,  and  arising 
out  of  the  following  causes  of  action : 

''1.  A  cause  of  action  arising  out  of  the  contract  or  transaction  set 
forth  in  the  complaint  as  the  foundation  of  the  plaintiff's  claim,  or 
connected  with  the  subject  of  the  action. 

''2.  In  an  action  arising  on  contract,  any  other  cause  of  action 
arising  also  on  contract,  and  existing  at  the  commencement  of  the 
action.'' 


260   ,  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

provisions  of  §914  of  the  Revised  Statutes  of  the  United 
States,  it  becomes  the  practice  in  causes  in  the  courts  of  the 
United  States  held  in  South  Carolina.  That  section  requires 
"the  practice,  pleadings,  forms  and  modes  of  proceedings" 
in  the  Federal  courts  to  "conform  as  near  as  mav  be"  to  the 
practice  in  the  state  courts.  An  answer  to  this  contention 
is  that  the  Supreme  Court  of  the  State  did  not  so  construe 
the  Code  of  Procedure.  On  the  effect  of  the  judgment  of  the 
Circuit  Court  of  the  United  States  as  res  judicata  the  court 
divided,  but  three  members  of  the  court  must  have  enter- 
tained opinions  adverse  to  the  contention  of  the  Chemical 
Company.  Mr.  Justice  Gary  discussed  the  effect  of  the 
judgment,  and  was  of  opinion  that  it  was  not  res  jvdiccUa,  a 
conclusion  at  which  he  could  not  have  arrived  if  the  code  of 
the  State  required  Kirven  to  set  up  his  demand  for  damages 
in  the  answer.  Mr.  Justice  Woods,  in  his  concurring  opinion, 
expressed  the  view  that  under  the  code  the  demand  could 
have  been,  but  was  not  required  to  be,  pleaded  in  defense. 
Mr.  Justice  Pope  dissented  from  that  construction,  and  also 
from  the  effect  of  the  judgment  as  res  judicata,  Mr.  Jus- 
tice Jones  concurred  with  the  Chief  Justice  only  as  to  the 
effect  of  the  judgment. 

Finally,  it  is  urged  that  in  the  case  of  Greenwood  Drug 
Company  v.  Bromonia  Company,  81  S.  Car.  516,  decided 
since  the  case  at  bar,  the  Supreme  Court  of  the  State  of  South 
Carolina  is  in  accord  with  the  contention  of  the  Chemical 
Company  as  to  the  effect  of  judgments  as  res  judicata,  and  has 
modified  the  views  expressed  by  that  court  in  the  case  at  bar. 
It  may  well  be  contended  that  we  are  not  concerned  to  con- 
sider to  what  extent  that  learned  court  has  modified  its  views, 
as  we  have  taken  jurisdiction  of  this  case  because  of  our 
right  to  decide  the  weight  and  effect  to  be  given  to  the  judg- 
ment of  the  Circuit  Court.  It  is  enough,  however,  to  say  that 
the  Supreme  Court  of  South  Carolina  did  not  question  the 
correctness  of  its  decision  in  the  case  at  bar. 

Judgment  affirmed. 


SNYDER  V,  ROSENBAUM.  261 

215  U.  8.  Opinion  of  the  Ck>urt. 


SNYDER  V,  ROSENBAUM. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  TERRITORY  OF 

OKLAHOMA. 

No.  26.    Argued  November  8,  9,  1909.— Decided  December  6,  1909. 

In  this  case  the  judgment  of  the  Supreme  Court  of  the  Territory  of 

Oklahoma,  involving  contract  rights,  is  affirmed. 
The  opinion  of  the  Supreme  Court  of  the  Territory  followed  to  the 

effect  that  the  facts  stated  constituted  duress  within  the  meaning 

of  the  territorial  statute. 
Stating  only  part  of  a  statutory  definition  of  duress  in  the  charge 

to  the  jury  held  not  reversible  error,  it  not  appearing  that  the 

defendant  was  hurt  thereby. 
18  Oklahoma,  168,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Gardiner  Lathrop,  with  whom  Mr.  Armwell  L.  Cooper, 
Mr.  John  E.  Wilson  and  Mr.  John  S.  Wright  were  on  the 
brief,  for  plaintiff  in  error. 

Mr.  C.  J.  Wrightsman  and  Mr.  J.  J.  Darlington,  with  whom 
Mr.  Carl  Meyer  and  Mr.  L.  W.  Lee  were  on  the  brief,  for 
defendant  in  error. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  brought  by  the  executors  of  Robert 
M.  Snyder  to  reverse  a  judgment  upon  a  written  contract  in 
favor  of  one  Stribling,  assigned  by  him  to  the  defendant  in 
error,  Rosenbaum.  Snyder  v.  Stribling,  18  Oklahoma,  168. 
The  contract  was  dated  September  1,  1909,  and  purported 
to  be  a  sale  by  Stribling  of  12,700  head  of  steer  cattle,  then 
in  pasture  near  Gray  Horse,  Oklahoma,  of  which  12,500  were 


262  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

to  be  counted  out  to  the  purchaser;  with  particulars  as  to 
age.  Also,  of  from  3,200  to  3,500  acres  of  com-,  1,400  acres  of 
cane,  and  about  5,000  acres  of  hay,  all  near  the  same  place. 
Also,  of  certain  horses,  mules,  wagons,  and  ranch  outfit,  em- 
ployed by  Stribling  about  the  said  cattle.  By  a  later  clause 
the  farms  where  the  fodder  was  were  specified,  and  it  was 
added  that  the  exact  acreage  was  not  guaranteed.  The 
agreed  price  was  $500,000,  to  be  paid,  first,  by  the  transfer 
to  Stribling  of  a  ranch  in  Arizona,  with  the  herd  and  outfit 
thereon,  at  the  valuation  of  $150,000;  next,  by  the  assump- 
tion of  an  encumbrance  of  $240,000  on  10,500  of  the  cattle 
sold;  'the  balance  ...  to  be  paid  ...  or  ac- 
counted for  satisfactorily  to  said  Stribling  with  .  .  .  days 
of  the  signing  of  this  instrument.'  It  was  agreed  that  10,500 
of  the  cattle  were  free  from  encumbrances  except  the  $240,000 
just  mentioned,  and  that  if  there  was  any  encumbrance  of 
the  remaining  2,000  such  encumbrance  should  be  deducted 
from  the  purchase  price.  "Said  cattle  to  be  counted  within 
fifteen  days."  Both  parties  to  the  contract  were  experienced 
men. 

Stribling  alleged  performance  of  the  contract  on  his  part 
and  a  breach  by  Snyder  in  not  conveying  his  Arizona  ranch, 
and  in  not  accounting  for  a  cash  balance  of  $5,200.  The 
answer  set  up  a  document  of  October  1,  1900,  signed  by 
Snyder  and  Stribling,  and  addressed  to  a  third  party,  as  a 
supplemental  contract;  denied  performance  of  this  or  the 
original  agreement  by  Stribling,  stating  various  details  of 
failure,  and  alleged  fraud.  The  replication  averred  that  to 
secure  an  extension  of  time  for  the  payment  of  the  mortgage 
on  the  cattle  referred  to  in  the  original  contract,  Stribling  and 
Snyder,  on  September  5,  made  an  agreement  with  the  holder, 
by  one  part  of  which  Snyder  agreed  to  market  enough  of  the 
cattle  to  pay  the  notes  that  were  overdue,  and  by  which  he 
also  bound  himself  to  pay  the  other  mortgage  notes  as  they 
fell  due.  The  replication  continued  that  on  October  1,  1900, 
Stribling  had  delivered  the  cattle  and  other  property,  and 


SNYDER  V,  ROSENBAUM.  263 

215  U.  S.  Opinion  of  the  Court. 

that  Snyder^  being  in  possession  of  them,  told  Stribling  that 
unless  he  signed  the  document  set  up  in  the  answer  he  would 
not  pay  for  the  cattle  or  pay  the  mortgage  debt  or  release 
the  cattle;  that  both  parties  understood  that  this  threat,  if 
carried  out,  would  lead  to  an  immediate  foreclosure  and 
Stribling's  ruin,  and  that  in  those  circumstances,  character- 
ized as  duress,  Stribling  signed. 

There  was  a  trial  and  the  jury  found  for  the  plaintiff.  It 
made  in  addition  a  very  great  number  of  special  findings,  es- 
tablishing, subject  to  any  question  of  law  that  may  have  been 
reserved,  much  more  than  was  necessary  to  support  the  ver- 
dict. It  found  the  foDowing  facts  among  others:  In  pursu- 
ance of  the  September  contract,  12,391  head  of  cattle  were 
coimted  out  to  the  purchaser,  and  the  counting  of  the  rest  of 
the  12,500  was  stopped  by  the  purchaser's  agent,  he  being 
satisfied,  and  there  being  enough  cattle  in  sight  to  make  up 
the  total.  After  the  count,  on  or  about  September  26,  1900, 
the  purchaser  took  possession  and  Stribling  then  ceased  to 
exercise  control  over  the  property.  This  included  12,500 
head  of  cattle,  the  horses,  mules,  wagons,  harness,  pastures, 
camp  outfit  and  such  feed  as  was  there.  Stribling  asked 
Snyder  for  a  settlement  and  Snyder  made  no  objection  to 
the  correctness  of  the  count  or  to  the  representations  as 
to  the  acreage  of  feed  or  to  StribUng's  performance  otherwise, 
but  nevertheless  refused  to  do  his  part.  He  sold  the  cattle 
again  by  a  transaction  which  it  is  not  necessary  to  trace,  and 
the  negotiations  concerning  which  were  not  known  to  Strib- 
ling at  the  time  of  Snyder's  threats  mentioned  in  the  replica- 
tion, and  of  the  signing  of  the  document  of  October  1 .  The 
threats  alleged  are  found  to  have  been  made  and  to  have  in- 
duced Stribling  to  sign,  without  other  consideration.  At 
this  time  the  value  of  the  cattle  was  going  down,  and  that  of 
the  Arizona  property  was  going  up,  facts  that  may  partly 
account  for  Snyder's  conduct.  It  is  found  that  he  wanted  to 
avoid  the  September  contract,  and  to  get  the  cattle  by  merely 
discharging  the  liens.    But  the  parties  did  not  carry  out  the 


2W  OCTOBER  TERM,  1909. 

OpinioQ  of  the  Court.  215  U.  S. 

provisions  of  the  October  document,  and  upon  this  finding 
and  the  finding  as  to  the  pressure  under  which  it  was  executed 
it  is  unnecessary  to  state  its  provisions.  They  were  more 
onerous  to  StribUng  in  several  respects,  requiring  a  further 
count,  and  forfeiting  the  Arizona  property  if  the  full  number 
was  not  turned  over  and  payment  made  for  any  deficiency 
within  five  days  of  the  count. 

All  fraud  on  Stribling's  part  is  n^atived,  and  the  upshot  of 
the  whole  matter  is  that  he  performed  his  contract  in  every 
respect  except  that  there  was  not  so  much  fodder  as  was  sup- 
posed, and  for  that  the  jury  made  an  allowance  of  nine  thou- 
sand dollars. 

The  argument  for  the  plaintififs  in  error  discusses  the  evi- 
dence at  great  length.  But  we  shall  deal  only  and  viery  briefly 
with  the  rulings  that  seem  to  us  to  require  notice.  It  is  enough 
to  say  at  the  outset  that  there  was  some  evidence  to  support 
the  special  findings  that  we  have  mentioned.  But  it  is  urged 
that,  this  being  a  suit  upon  the  contract,  if  it  was  not  per- 
formed to  the  letter,  the  plaintifif  cannot  recover.  The  judge 
instructed  the  jury  that  a  contract  of  this  kind,  for  the  delivery 
of  a  certain  number  of  cattle,  is  severable,  and  that  if  the  whole 
number  of  cattle  or  the  full  number  of  acres  of  feed  were  not 
delivered,  still  the  plaintiff  could  recover  the  contract  price  less 
an  allowance  for  the  damage  occasioned  by  the  failure.  This  is 
assigned  as  error.  It  is  unnecessary  to  consider  whether  the 
construction  of  the  contract  was  too  liberal  in  favor  of  the 
plaintifif  or  whether  it  embodied  the  understanding  upon  which 
such  dealings  take  place.  The  jury  found  that  all  the  cattle 
were  delivered.  As  to  the  deficiency  in  the  acreage  of  fodder, 
the  contract  stated  that  the  precise  amount  was  not  guaran- 
teed, and  the  jury  found  that  Snyder  was  acting  on  his  own  in- 
spection. The  deficiency  did  not  go  to  the  root  of  the  con- 
tract. Furthermore  if,  after  the  parties  have  had  a  full  trial, 
and  after  such  specific  findings  as  were  made,  any  amend- 
ment were  necessary,  which  we  are  far  from  intimating,  no 
doubt  it  would  be  allowed.    The  defendant  suffered  no  possi- 


SNYDER  V.  ROSENBAUM.  265 

215  U.  S.  Opinion  of  the  Court. 

ble  surprise.     See  also  Wilson's   Stats.   Oklahoma,    1903, 
§4344. 

It  is  objected  further  that  the  other  cattle,  above  the  10,500 
mentioned  in  the  contract  as  mortgaged,  and  the  fodder  were 
subject  to  liens  for  about  $110,000.  But  this  possibility  was 
contemplated  by  the  contract,  the  liens  were  satisfied  out  of 
the  purchase  price,  and  no  harm  was  done.  Finally,  it  is  said, 
that  the  delivery  was  not  made  within  fifteen  days.  But,  by 
statute,  time  is  not  of  the  essence  of  a  contract,  'unless  by  its 
terms  expressly  so  provided.'  Wilson,  Stats.  1903,  §809. 
The  delay  was  not  the  fault  of  Stribling,  but  was  due  to 
Snyder  and  his  agents.  The  cattle  were  accepted  without  ob- 
jection on  that  ground,  and  if  the  delay  could  have  been  com- 
plained of  under  the  circumstances,  performance  ad  diem  was 

waived. 

The  other  principal  defense  and  the  ground  of  counter- 
claim relied  upon  was  the  alleged  contract  of  October  1.  As 
the  validity  of  this  contract  was  denied  and  the  execution 
of  it  said  to  have  been  abandoned,  of  course  the  judge  was 
right  in  refusing  instructions  that  assumed  it  to  be  in  force. 
But  complaint  is  made  of  an  instruction  to  the  jury  in  the 
language  of  the  statutes  as  to  duress  and  undue  influence. 
Probably  through  a  mechanical  sUp,  only  a  part  of  the  statute 
as  to  duress  was  recited,  so  that  fraudulent  confinement  of 
the  person  seemed  to  be  stated  as  an  exhaustive  definition. 
But  this  did  not  hurt  the  defendant,  if  for  no  other  reason, 
because  there  was  no  pretence  of  dureiss  in  that  sense.  The 
judge  then  went  on  to  quote  the  definition  of  one  form  of  un- 
due influence,  as  'taking  a  grossly  oppressive  and  unfair 
advantage  of  another's  necessities  or  distress.'  Wilson, 
Stats.  1903,  §  746.  It  is  objected  that  undue  influence  was 
not  pleaded.  But  the  facts  were  pleaded  and  were  found  by 
the  jury  in  like  form.  We  should  assume  that  those  facts 
amounted  to  undue  influence  within  the  meaning  of  the 
Oklahoma  statutes  until  the  Supreme  Court  of  the  State  says 
otherwise.    But  it  is  said  that  they  do  not  amount  to  duress. 


266  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  8. 

and  therefore  an  instruction  should  have  been  given,  as  asked, 
that  there  was  no  evidence  of  duress.  We  see  no  reason  for 
not  following  the  opinion  of  the  territorial  court  that  the  facts 
also  constituted  duress  within  the  meaning  of  the  statute. 
See  Silsbee  v.  WMer,  171  Massachusetts,  378.  But  it  does  not 
seem  to  matter  what  they  are  called  if  they  are  found  to  have 
existed.  Furthermore,  we  see  no  ground  on  which  we  can  go 
behind  the  finding  that  neither  side  carried  out  the  ^eged 
October  contract.  There  was  some  evidence  to  that  eflFect, 
and  we  are  not  concerned  with  its  weight.  We  do  not  think 
it  necessary  to  mention  all  the  points  that  we  have  examined. 
Upon  the  whole  case  we  are  of  opinion  that  no  error  of  law  is 
disclosed  that  entitles  the  plaintiffs  in  error  to  a  new  trial. 

Judgment  affirmed. 


RIO  GRANDE  DAM  AND   IRRIGATION  COMPANY   v. 

UNITED  STATES. 

APPEAL    FROM  THE   SUPREME   COURT   OF  THE   TERRITORY   OP 

NEW   MEXICO. 

No.  49.     Argued  December  3,  1909.— Decided  December  13,  1909. 

Where  a  case  is  opened  that  further  evidence  may  be  produced,  it 
is  also  open  for  the  amendment  of  the  original  pleadings  or  for 
additional  pleadings  appropriate  to  the  issues;  and  permission 
by  the  lower  court  to  file  such  supplemental  complaint  is  not  in- 
consistent with  the  mandate  of  this  court  remanding  the  case  with 
directions  to  grant  leave  to  both  sides  to  adduce  further  evidence. 

Under  the  provisions  of  the  Code  of  New  Mexico  allowing  supple- 
mental pleadings  alleging  facts  material  to  the  issue,  the  fact  that 
the  defendant  corporation  has,  since  the  suit  was  brought  by  the 
Government  to  enjoin  it  from  so  building  a  dam  as  to  interfere  with 
the  navigability  of  an  international  river,  failed  to  exercise  its 
franchise  in  accordance  with  the  statute,  is  germane  to  the  object 
of  the  suit  and  may  be  pleaded  by  supplemental  complaint. 


RIO  GRANDE  DAM  &c.  CO.  v,  UNITED  STATES.  267 
215  U.  S.  Statement  of  the  Gaae. 

The  allowance  of  amendtnents  of  supplemental  pleadings  must  at 
every  stage  of  the  cause  rest  with  the  discretion  of  the  court,  which 
discretion  must  depend  largely  on  the  special  circumstances  of 
each  case,  nor  will  the  exercise  of  this  discretion  be  reviewed  in 
the  absence  of  gross  abuse. 

Attorneys  of  record  are  supposed  to  be  present  during  the  terms  of 
the  court  in  which  their  causes  are  pending,  and  are  chargeable 
with  notice  of  proceedings  transpiring  in  open  court. 

In  this  case  the  action  of  the  trial  court  in  taking  a  supplemental 
complaint  for  confessed  in  the  absence  of  any  pleading  after  the 
time  therefor  had  elapsed,  sustained,  there  appearing  to  be  no 
excuse  for  the  default  and  no  irregularity  appearing  in  the  order 
permitting  the  filing  of  the  complaint  or  in  the  service  thereof. 

The  fact  that  for  a  time  work  was  enjoined  at  the  instance  of  the 
Government  does  not  excuse  the  delay  in  completing  work  under 
statutory  permission  within  the  time  prescribed  where  the  delay 
exceeds  the  limit  after  deducting  all  the  time  for  which  the  in- 
junction was  in  force. 

13  New  Mexico,  386,  affirmed. 

The  general  object  of  this  suit — which  was  brought  by  the 
United  States  in  one  of  the  courts  of  New  Mexico  on  the 
twenty-fourth  day  of  May,  1897 — was  to  obtain  an  injunction 
to  prevent  the  Rio  Grande  Dam  and  Irrigation  Company  from 
constructing  and  maintaining  a  dam  across,  and  a  reservoir 
over  and  near,  the  Rio  Grande  River  at  a  certain  point  in  that 
Territory.  In  the  court  of  original  jurisdiction  the  suit  was 
dismissed  and  the  dismissal  was  affirmed  by  the  Supreme 
Court  of  the  Territory;  but  that  judgment  was  reversed  by 
this  court,  with  instructions  to  set  aside  the  decree  of  dismissal 
and  to  inquire  whether  the  intended  acts  of  the  defendants 
in  the  construction  of  a  dam  and  appropriating  the  waters  of 
the  Rio  Grande  would  substantially  diminish  the  navigability 
of  that  stream  within  the  limits  of  present  navigability;  and, 
if  so,  to  enter  a  decree  restraining  those  acts  to  the  extent  that 
they  would  so  diminish.  United  States  v.  Rio  Grande  Irrigch 
tion  Company,  174  U.  S.  690,  708,  710.  The  mandate  of  this 
court  to  that  effect  was  executed  by  the  Supreme  Court  of  the 
Territory,  and  the  cause  went  back  to  the  court  of  original 


268  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  8. 

jurisdiction  with  directions  to  proceed  in  accordance  with  that 
mandate. 

The  cause  was  again  heard  in  the  court  of  original  jurisdic- 
tion, that  court,  denying  a  motion,  in  behalf  of  the  United 
States,  for  a  continuance  in  order  that  it  might  more  fully 
prepare  its  case.  The  suit,  on  final  hearing,  was  again  dis- 
missed, and  that  judgment  was  sustained  by  the  Supreme 
Court  of  the  Territory.  But  this  court  reversed  the  decree  of 
the  latter  court  and  remanded  the  cause  \^ath  instructions  to 
reverse  the  decree  of  the  court  of  original  jurisdiction,  and 
with  directions  "to  grant  leave  to  both  sides  to  adduce  fiuther 
evidence."  United  State^'i  v.  Rio  Grande  Dam  &  Irrigation  Co., 
184  U.  S.  416,  424,  425.  The  mandate  of  this  court  to  the 
above  effect  was  executed,  and  the  case  was  again  placed  on 
the  docket  of  the  court  of  original  jurisdiction. 

For  a  full  statement  of  the  issues  and  facts  up  to  this  point 
in  the  litigation  reference  is  made  to  the  opinions  of  this  court 
as  reported  in  174  U.  S.  690,  and  184  U.  S.  416. 

The  record  shows  that  on  the  seventh  day  of  April,  1903 — 
after  the  last  decision  in  this  court — the  United  States,  by 
leave  of  the  court  of  original  jurisdiction,  filed  a  supjJemental 
complaint,  which  set  forth  the  then  status  of  the  case.  That 
complaint  referred  to  the  defendant's  plea,  stating  that  it  had 
complied  with  the  requirements  of  the  act  of  Congress  ap- 
proved March  3d,  1891,  repeahng  timber  culture  laws  and  for 
other  purposes,  26  Stat.  1095,  1102,  c.  561,  §§20,  21,  and 
"  had  acquired  a  right  to  construct  said  dam  and  divert  said 
water  by  reason  of  compliance  with  the  terms  of  said  Act." 
It  then  proceeded:  "II.  Plaintiff  further  alleges  that  defend- 
ant's plea  above  referred  to,  claiming  a  right  to  construct  said 
dam  under  the  said  act  of  Congress,  approved  March  3d,  1891, 
c.  561,  was  filed  on  June  26,  A.  D.  1897,  and  that  its  articles  of 
incorporation  and  proof  of  its  incorporation,  and  the  map  and 
survey  of  its  reservoir  had  been  filed  and  approved  by  the 
Secretary  of  the  Interior  long  prior  to  the  filing  of  said  plea,  as 
appears  from  an  inspection  of  said  plea  itself.    III.  Plaintiff 


RIO  GRANDE  DAM  &c.  CO.  v,  UNITED  STATES.  269 
215  U.  S.  Statement  of  the  Case. 

ftirther  alleges  that  in  and  by  section  twenty  of  the  said  act  of 
March  3d,  1891,  above  referred  to,  it  was  provided  'that  if  any 
section  of  said  canal,  or  ditch,  shall  not  be  completed  within 
five  years  after  the  location  of  said  section,  the  rights  herein 
granted  shall  be  forfeited  as  to  any  uncompleted  section  of  said 
canal,  ditch  or  reservoir,  to  the  extent  that  the  same  is  not 
completed  at  the  date  of  the  forfeiture,'  and  that  although 
five  years  since  the  filing  and  approval  of  said  articles  of  in- 
corporation, proofs  of  organization,  maps  and  surveys  have 
long  since  elapsed,  defendant  has  not  complied  with  the  re- 
quirements of  said  act,  but  has  failed  to  construct  or  complete 
within  the  period  of  five  years  after  the  location  of  said  canal 
and  reservoir  any  part  or  section  of  the  same,  and  the  same 
has  by  reason  thereof  become  forfeited.  IV.  Plaintifif  further 
alleges  that  diuing  all  of  said  time,  except  from  May  24th, 

1897,  to 1897,  the  date  when  the  temporary  injunction 

was  dissolved,  the  said  defendants  have  been  in  no  wise 
hindered,  restrained  or  prevented  from  complying  with  the 
provisions  of  said  act  by  any  judicial  order  or  process  whatso- 
ever. V.  Wherefore,  plaintiff  prays  to  be  pennitted  to  file 
this  supplemental  bill  of  complaint,  and  that  the  same  be  con- 
sidered upon  the  hearing  of  this  cause,  and  that  the  defendants 
be  decreed  to  have  forfeited  all  the  rights  they  may  have  had, 
or  claimed  under  and  by  virtue  of  said  act  of  March  3d,  1891, 
not  hereby  admitting,  however,  that  the  defendants  ever  ac- 
quired any  rights  imder  and  by  virtue  of  said  act.  Plaintiff 
further  prays  that  the  injunction,  and  all  other  relief  prayed 
for  in  and  by  said  amended  bill  of  complaint,  be  granted,  and 
that  said  injimction  be  made  perpetual,  and  that  it  have  and 
recover  its  costs  expended  in  this  cause,  and  thus  plaintiff  will 
ever  pray." 

A  copy  of  this  supplemental  complaint  was  served  on  the 
attorney  of  the  defendants  on  the  day  (April  7th,  1903)  it  was 
filed.  More  than  forty  days  thereafter,  on  the  twenty-first 
day  of  May,  1903,  a  decree  was  entered  finding  the  allegations 
of  the  supplemental  complaint — no  demurrer,  answer  or  other 


270  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

pleading  having  been  filed  thereto — "are  confessed  and  are 
true."  The  court  further  found  "that  the  articles  of  incorpo- 
ration and  the  map,  survey  of  the  reservoir  of  the  defendant 
corporation,  the  Rio  Grande  Dam  and  Irrigation  Company, 
were  filed  with  the  Secretary  of  the  Interior  prior  to  the 
twenty-sixth  day  of  June,  A.  D.  1897,  and  were,  prior  to  said 
date,  approved  by  the  Secretary  of  the  Interior;  and  it  further 
finds  that  the  said  defendants  have  not  completed  its  said 
reservoir  or  said  ditch,  or  any  section  thereof,  within  five  years 
after  the  location  of  the  said  reservoir  and  its  said  ditch  line, 
or  within  five  years  after  the  approval  of  the  same  by  the 
Secretary  of  the  Interior;  and  the  court  further  finds  that  five 
years  since  the  filing  and  approval  of  the  said  articles  of  in- 
corporation, proof  of  organization,  maps  and  surveys  of  the 
said  reservoir  and  ditch  Hne  of  the  defendants  had  long  since 
elapsed  prior  to  the  filing  of  the  said  supplemental  bill  and 
that  the  defendants  had  not  complied  with  the  requirements 
of  the  act  of  Congress,  approved  March  3,  1901,  under  which 
the  same  were  filed,  but  have  failed  to  construct  or  complete 
within  the  period  of  five  years  after  the  location  of  the  said 
canal  and  reservoir  any  part  or  section  of  the  same."  And  it 
was  adjudged  "that  the  rights  of  the  said  defendants,  or  either 
of  them,  to  so  construct  and  complete  the  said  reservoir  and 
said  ditch,  or  any  part  thereof,  under  and  by  virtue  of  the 
said  act  of  Congress  of  March  3,  1901,  be  and  the  same  are 
hereby  declared  to  be  forfeited.  It  is  further  ordered,  ad- 
judged and  decreed  by  the  court  by  reason  of  the  premises 
that  an  injunction  be,  and  the  same  is  hereby  granted  against 
the  said  defendants,  enjoining  them  from  constructing  or  at- 
tempting to  construct  the  said  reservoir,  or  any  part  thereof, 
and  that  the  same  be  made  perpetual."  (By  an  amended  de- 
cree filed  October  5th,  1903,  and  entered  nunc  pro  tunc  as  of 
May  21st,  1903,  the  date  given  as  March  3d,  1901,  in  the  decree 
was  made  to  read  March  3d,  1891,  in  order  to  conform  to  the 
actual  date  of  the  act  of  Congress  intended  to  be  referred  to 
both  by  the  United  States  and  by  the  court.) 


RIO  GRANDE  DAM  &c.  CO.  v.  UNITED  STATES.  271 
215  U.  S.  Argument  for  Plaintiffs  in  Error. 

A  statute  of  New  Mexico,  in  force  at  the  time  and  before  the 
above  decree  was  rendered,  provided:  "Every  pleading,  sub- 
sequent to  the  complaint,  shall  be  filed  and  served  within 
twenty  days  after  service  of  the  pleading  to  which  it  is  an 
answer,  demurrer,  or  reply."  Compiled  Laws  of  New  Mexico, 
1907,  Title  33;  Code  of  Civil  Procedure,  c.  1,  art.  4,  sub.  sec.  46. 

On  the  thirty-first  of  October,  1903,  the  defendants  moved 
the  court  to  vacate  the  order  allowing  the  supplemental  bill 
to  be  filed,  and  that  they  be  permitted  to  come  in  and  answer 
the  supplemental  bill.  This  motion  was  denied  and  upon  ap- 
peal to  the  Supreme  Court  of  the  Territory  the  action  of  the 
trial  court  on  this  point  was  sustained.  The  former  court,  at 
the  same  time,  March  2d,  1906,  adjudged  that  the  right  of  the 
defendants,  or  either  of  them,  to  construct  and  complete  its 
reservoir  and  ditch,  or  any  part  thereof,  within  the  time  re- 
quired by  the  act  of  Congress  of  March  3d,  1901,  was  forfeited. 
It  was  also  adjudged  that  the  defendants  be  enjoined  from 
constructing,  or  attempting  to  construct,  the  said  reservoir  or 
any  part  thereof.  The  injunction  was  made  perj)etual.  From 
that  judgment  the  present  appeal  was  prosecuted. 

Mr.  William  W,  Bride  and  Mr.  Frederick  S,  Tyler^  with 
whom  Mr,  Charles  A,  Douglas  was  on  the  brief,  for  plaintiffs 
in  error: 

The  lower  court  erred  in  permitting  a  supplemental  com- 
plaint to  be  filed.  This  court  has  many  times  frowned  upon 
such  acts.  Southard  v.  Ru^seU,  16  How.  547;  Ex  parte  Du- 
buque, 1  Wall.  69;  Ames  v.  Kimberly,  136  U.  S.  629;  Re  Game- 
well  Co.,  73  Fed.  Rep.  908;  West  v.  Brashear,  14  Pet.  51; 
Mason  v.  Harpers  Ferry,  20  West  Va.  223;  Boggs  v.  WiUard, 
70  Illinois,  315;  Rees  v.  McDaniels,  131  Missouri,  681;  Gage  v. 
Bailey,  119  Illinois,  539;  Chateau  v.  AUen,  114  Missouri,  56; 
Mackall  v.  Richards,  116  U.  S.  47;  ite  Sandford  Tool  Co,,  160 
U.  S.  255;  SiJtibald  v.  United  States,  12  Pet.  488;  Tex.  &  Pac. 
Ry.  V.  Anderson,  149  U.  S.  237. 

The  direction  to  allow  further  proof  was  specific  and  the 


272  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  215  U.  S. 

court  below  varied  that  direction — ^and  this  can  be  corrected 
by  mandamus  or  appeal.  United  States  v.  FosscUt,  21  How. 
445;  Re  Sandford  Tool  Co,,  160  U.  S.  255.  The  supplemental 
bill  was  improperiy  so  called;  it  was  not,  nor  was  its  purpose, 
related  to  the  original  bill  but  it  set  up  independent  cause  of 
action.  This  is  not  permissible.*  AccumvJUUor  Co,  v.  Electric 
Co.,  44  Fed.  Rep.  602,  607;  2  Street's  Fed.  Eq.  Prac,  §§  1170, 
1171;  1  Fosters  Fed.  Prac,  4th  ed.,  631;  Trust  Co,  v.  Street 
Railway,  74  Fed.  Rep.  67;  Putney  v.  Whitmire,  66  Fed.  Rep. 
385;  Stafford  v.  HowleU,  1  Paige  (N.  Y.),  200;  Vansile's  Eq. 
Plead.,  §263;  MUner  v.  MUner,  2  Edw.  Ch.  (N.  Y.)  114; 
Higginson  v.  C,  5.  cfe  Q.  R,  72.,  102  Fed.  Rep.  197;  Fletcher's 
Eq.  Plead.  892. 

The  supplemental  bill  must  be  germane  to  the  original  bill, 
and  if  the  original  bill  shows  no  ground  for  rehef  it  cannot  be 
aided  by  a  supplemental  bill  setting  up  matters  that  have 
since  arisen.  Minnesota  Co.  v.  St.  Paul  Co.,  6  Wall.  742; 
Story  Eq.  Plead.,  §339;  Hughes  v.  Carue,  135  Illinois,  519; 
Maynard  v.  Green,  30  Fed.  Rep.  643;  Prouly  v.  Lake  Shore 
Ry.,  85  N.  Y.  275;  Snead  v.  McCouU,  12  How.  407. 

The  notice  was  insufficient.  Equity  Rule  57,  and  cases 
cited  in  Desty's  Rules,  7th  ed.,  p.  110. 

The  Solicitor  General  for  the  United  States,  appellee: 
The  trial  court  properly  allowed  complainant's  supple- 
mental bill  to  be  filed.  Nothing  in  the  previous  decisions  of 
this  court  was  incompatible  with  the  filing  of  the  supple- 
mental bill  or  with  the  subsequent  proceedings  upon  it.  Al- 
lowance of  the  filing  of  a  supplemental  bill  is  within  the  discre- 
tion of  the  trial  court.  Berliner  Gramoplwne  Co.  v.  Seaman, 
113  Fed.  Rep.  750,  754;  Jacob  v.  Lorenz,  98  California,  332, 
337;  Farmers*  Loan  &  Trust  Co.  v.  Bankers'  &  Merchants' 
Telegraph  Co.,  109  N.  Y.  342.  And,  in  general,  granting  or 
refusing  leave  to  file  a  new  plea,  or  to  amend  a  pleading,  is 
discretionary  and  is  not  reviewable  on  appeal  except  for  gross 
abuse  of  discretion.    Mandeville  v.  Wilson,  5  Cranch,  15,  17; 


RIO  GRANDE  DAM  &c.  CO.  v,  UNITED  STATES.  273 

215  U.  iS.  Argument  for  the  United  States. 

Gomdey  v.  Bunyan,  138  U.  S.  623;  Chapman  v.  Barney,  129 
U.  S.  677;  Walden  v.  Craig,  9  Wheat.  576;  Chirac  v.  Reinicker, 
11  Wheat.  280;  Ex  parte  Bradstreet,  7  Pet.  634. 

Notice  of  complainant's  application  for  leave  to  file  its  sup- 
plemental bill  was  served  upon  the  defendants'  attorney; 
and  no  evidence  to  the  contrary  is  found  in  the  record.  But 
the  omission  of  notice  would  not  be  material  error,  because  a 
copy  of  the  bill  was  at  once  served  upon  the  attorney  for  de- 
fendants and  they  had  full  opportunity  thereupon  to  move  to 
strike  it  ofif  the  file  or  demur.  As  defendants  failed  in  any  way 
to  attack  the  filing  of  the  bill  or  to  demur  or  plead  in  any  way 
to  it  within  the  time  allowed  by  §  2685,  New  Mexico  Code  of 
Civil  Procedure,  it  was  the  duty  of  the  trial  court  to  take  the 
bill  pro  confesso  and  to  enter  the  decree. 

Notice  of  an  appUcation  for  leave  to  file  a  supplemental 
bill  is  not  in  all  cases  necessary.  It  is  a  matter  of  discretion 
with  the  court  whether  to  require  such  notice.  Eager  v. 
Price,  2  Paige  Ch.  333,  335;  Lawrence  v.  Bolton,  3  Paige,  294, 
295;  Barrido  v.  Trenton  Mut.  Life  &  Fire  Ins,  Co.,  13  N.  J.  Eq. 
154, 155;  Winn  &  Ross  v.  Albert  et  al,  2  Md.  Ch.  42;  Taylor  v. 
Taylor,  1  Mac.  &  G.  397. 

Whether  or  not  a  bill  is  not  supplemental  in  character,  is 
waived  by  failure  to  demur,  plead  or  object  thereto  within  the 
time  allowed.  The  proper  method  of  objecting  on  the  ground 
of  want  of  supplemental  matter  is  by  demurrer.  2  Daniell  Ch. 
PI.  &  Pr.,  6th  Am.  ed.,  p.  1535;  Bcmyer  v.  Bright,  13  Price,  316; 
Stafford  v.  HawleU,  1  Paige  Ch.  200. 

The  supplemental  bill  does  not  set  up  matter  foreign  to  the 
original  case  in  alleging  forfeiture  of  defendants'  rights  in 
their  dam  and  reservoir  sites.  Forfeiture  could  not  be  claimed 
in  the  original  bill  because  it  was  not  true  when  the  bill  was 
filed.  It  is  certainly  proper  to  add  the  claim  of  forfeiture  to 
the  original  bill  when  the  cause  of  forfeiture  occurred  after  the 
suit  was  begun.  Matter  may  be  introduced  by  supplemental 
bill  which  could  have  been  added  to  the  original  bill  if  then 
available.  Winn  &  Ross  v.  Albert  et  al,,  2  Md.  Ch.  42,  48; 
VOL.  ccxv — 18 


274  OCTOBER  TERM,  1909. 

Opnuan  of  the  Court.  21511.3. 

Hardin  v.  Boyd,  113  U.  S.  756.  As  to  scope  allowable  to  a 
supplemental  biU,  see  Janes  v.  Janes,  3  Atk.  110;  Eager  v. 
Price,  2  Paigp,  333;  Saunders  v.  Frost,  5  Pick.  275;  Fisher  v. 
Holden,  84  Michigao,  494;  Jacob  v.  Lorem,  98  Califonua,  332; 
Hasbrouck  v.  Shuster,  4  Barb.  285;  Candler  v.  PeOU,  1  Paige 
Ch.  168;  Winn  A  Ross  v.  Aftcrt  et  al,,  2  Md.  Ch.  42;  Mutter  v. 
Chauvd,  5  Russ.  42;  Aeeve  v.  JVorfA  Carolina  Land  A  Timber 
Co.,  141  Fed.  Rep.  821;  Jenkins  v.  Int.  Nat.  Bank,  127  U.  S. 
484. 

The  rule  that  a  bad  title  set  up  in  the  original  bill  cannot  be 
aided  by  supplemental  bill  setting  up  a  new  and  distinct  title 
obtains  only  when  complainant's  original  title  is  wholly  bad; 
it  does  not  prevent  the  assertion  of  a  new  title  when  it  adds 
to  or  supplements  the  first  title,  instead  of  contradicting  it. 
Winn  &  Ross  v.  Albert,  supra.  And  see  Jacques  v.  HaU,  3 
Gray,  194,  197;  Candler  v.  Pettit,  1  Paige,  168;  Edgar  v. 
Clevenger,  3  N.  J.  Eq.  258;  Lowry  v.  Harris,  12  Minnesota,  255, 
266; /Jeew  V.  ri??i6er  Co.,  141  Fed.  Rep.  821,834.  There  is  no 
inconsistency  between  the  supplemental  and  original  bills  in 
this  case.  The  purpose  of  each  was  to  restrain  defendants' 
construction  and  use  of  the  proposed  dam  and  reservoir. 

Even  if  the  supplemental  bill  had  been  improperly  allowed 
to  be  filed,  it  was  right  to  deny  defendants'  motion  to  vacate 
the  allowance  of  the  filing  of  the  bill  and  the  decree  that  had 
been  entered  or  to  open  defendants'  default  and  permit  them 
to  plead.  Defendants'  inaction  and  laches  deprived  them  of 
any  claim  to  relief;  their  motion  was  too  late  imder  the  New 
Mexico  statute;  the  supplemental  character  of  complainant's 
bill  was  not  questionable  by  motion  but  only  by  demurrer; 
and  the  answer  which  defendants  asked  leave  to  interpose 
failed  itself  to  show  any  defense  against  default. 

Mr.  Justice  Harlan,  after  makmg  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

We  perceive  no  error  in  the  judgment  now  under  review. 


RIO  GRANDE  DAM  &c.  CO.  v.  UNITED  STATES.  275 
215  U.  S.  Opinion  of  the  Court. 

The  main  contention  of  the  defendants  is  that  it  was  error  to 
permit  the  United  States  to  file  its  supplemental  bill.  We  do 
not  accept  this  view  of  the  trial  court's  duty.  When  the  cause 
was  last  here  the  court  expressed  the  conviction  that  if  the 
case  was  finally  disposed  of  on  the  record  as  it  then  was  great 
wrong  might  be  done  to  the  United  States  and  to  all  interested 
in  preserving  the  navigability  of  the  Rio  Grande.  Hence,  the 
cause  was  sent  back  that  each  side  might  adduce  further  evi- 
dence, if  they  had  any  to  adduce.  When  the  Government 
asked  to  file  its  supplemental  bill  the  suit  was  of  course  rein- 
stated on  the  docket  of  the  court  of  original  jurisdiction  for 
such  action  as  might  be  proper  or  necessary.  The  case  having 
been  opened  that  further  evidence  might  be  produced,  it  was 
certainly  open  for  an  amendment  of  the  original  pleadings  or 
for  such  additional  pleadings  as  might  be  appropriate  to  the 
issues  between  the  parties.  The  parties  were  not  limited  to  the 
production  merely  of  evidence.  The  defendants,  in  the  dis- 
cretion of  the  court,  could  have  been  allowed,  upon  a  proper 
showing  and  before  taking  further  proof,  to  amend  their  plead- 
ings, and  equally  the  Government,  before  taking  further  proof, 
could  have  been  allowed  to  file  a  supplemental,  complaint. 
Marine  Ins.  Co,  v.  Hodgson,  6  Cranch,  206,  218.  Besides,  sub- 
section 87  of  the  New  Mexico  Civil  Code  would  seem  to  be 
broad  enough  to  cover  the  question  of  power.  It  provides: 
"A  party  may  be  allowed,  on  motion,  to  make  a  supplemental 
complaint,  answer  or  reply,  alleging  facts  material  to  the 
cause,  or  praying  for  any  other  or  different  relief,  order  or 
judgment."  The  facts  set  forth  in  the  supplemental  com- 
plaint were  manifestly  not  foreign  to  the  Government's  original 
cause  of  action.  In  every  substantial  sense  those  facts  were 
material.  Strictly  speaking,  they  may  have  constituted  new 
matter,  but  they  did  not  present  a  new  cause  of  action. 
Jenkins  v.  International  Bank  of  Chicago,  127  U.  S.  484.  They 
grew  out  of  and  were  connected  with  the  same  transaction 
from  which  this  litigation  arose,  and  were  germane  to  the  ob- 
ject of  the  suit.    That  object  was  to  restrain  the  defendants 


276  OCTOBER  TERM,  1909. 

Opinion  of  the  Ck>urt.  215  U.  S. 

from  constructing  and  maintaining  dams,  reservoirs,  canals  or 
ditches  that  would  obstruct  the  navigable  portion  of  the  Rio 
Grande  River.  If  all  the  grounds  of  reUef  set  out  in  the  sup- 
plemental complaint  did  not  exist  when  the  original  complaint 
was  filed,  they  were  alleged  to  exist  when  the  supplemental 
complaint  was  tendered,  and  being  connected  with  the 
original  cause  of  action  it  was  right  to  bring  them,  in  proper 
form,  to  the  attention  of  the  court  when  determining  whether 
the  Government  was  entitled  to  the  relief  it  asked.  So  the 
Supreme  Court  of  the  Territory  held,  and  so  we  hold.  There 
was,  plainly,  no  abuse  of  discretion  or  of  the  established  rules 
of  practice  in  permitting  the  supplemental  complaint  to  be 
filed.  The  allowance  of  amendments  of  equity  pleadings  must 
"at  every  stage  of  the  cause,  rest  in  the  discretion  of  the  court; 
and  that  discretion  must  depend  largely  on  the  special  circum- 
stances of  each  case."    Hardin  v.  Boyd,  113  U.  S.  756,  761. 

Upon  the  question  of  the  diUgence  or  want  of  diUgence  of 
the  parties,  it  may  be  said  that  the  supplemental  complaint 
was  tendered  at  a  time  when  the  court  was  open ;  the  leave  to 
file  was  given  in  open  court;  and  the  defendant's  attorney  was 
served  with  a  copy  of  that  complaint  on  the  very  day  it  was 
tendered  and  filed.  On  this  part  of  the  case  the  Supreme 
Court  of  the  Territory  said  that  attorneys  of  record  are  pre- 
sumed to  be  present  during  terms  of  the  court  in  which  their 
causes  are  pending,  and  in  contemplation  of  law  were  charge- 
able with  notice  of  all  proceedings  transpiring  in  open  court 
in  respect  of  such  causes;  also,  that  "under  the  facts  of  this 
case,  counsel  are  presumed  to  have  been  present,  and  to  have 
such  notice  as  the  law  requires  of  matters  transpiring  in  open 
court  on  the  day  on  which  leave  was  granted  to  file  the  supple- 
mental complaint,  and  the  same  was  filed  and  served  upon 
them.  Younge  v.  Broxson,  23  Alabama,  684;  Sanders  v.  Sav- 
age, 63  S.  D.  218.  The  court  was  vested  with  discretion  by  the 
last  clause  of  sec.  104,  supra,  [Code  of  Civil  Procedure,  as 
amended  by  c.  11  of  Laws  of  1901]  which  does  not  seem  to 
have  been  abused,  nor  was  there  any  abuse  of  the  general  dis- 


RIO  GRANDE  DAM  &c.  CO.  v.  UNITED  STATES.  277 

215  U.  S.  Opinion  of  the  Court. 

cretion  to  allow  an  amended  or  supplemental  bill  in  equity 
conferred  upon  the  courts  of  the  United  States,  as  may  be  seen 
by  reference  to  the  case  of  Berliner  Gramophone  Co,  v.  Seamon, 
113  Fed.  Rep.  750,  in  which  it  was  held  that,  'the  granting  of 
leave  to  file  an  amended  and  supplemental  bill  is  a  matter 
within  the  discretion  of  the  court,  and  its  action  will  not  be 
reviewed  in  an  appellate  court  unless  there  has  been  a  gross 
abuse  of  this  discretion.' " 

The  objection  that  the  trial  court  erred  in  taking  the  supple- 
mental complaint  for  confessed  cannot  be  sustained.  That 
objection  was  thus  properly  disposed  of  by  the  Supreme 
Court  of  the  Territory:  "There  being  no  error  or  irregularity 
in  the  court's  order  allowing  the  supplemental  complaint  to 
be  filed,  the  same  having  been  done  in  open  court,  and  a  copy 
of  the  same  having  been  served  upon  one  of  the  attorneys  of 
record  on  the  same  day  on  which  it  was  filed,  the  statute  re- 
quired an  answer  or  other  proper  pleading  to  be  filed  within 
twenty  days  from  the  date  of  such  fiiling,  and  in  the  event  of 
failure  to  plead,  or  secure  additional  time  to  plead,  neither  of 
which  were  done  in  this  case,  it  was  perfectly  regular  for  the 
court  to  render  decree.  Gregory  v.  Pike,  29  Fed.  Rep.  588. 
Appellants  seek  to  be  relieved  from  their  own  default  by  al- 
leging neglect  on  the  part  of  their  attorneys.  .  .  .  There 
being  service  of  a  copy  of  the  supplemental  complaint  upon 
one  of  the  attorneys  of  record  on  the  day  on  which  it  was  filed 
it  was  entirely  regular  for  the  court  to  render  the  decree  when 
applied  for  44  days  after  such  service,  in  the  absence  of  any 
appearance  or  pleading  by  the  appellants." 

Some  stress  is  laid  on  the  fact  that  the  Govenmient  ob- 
tained an  injunction  to  prevent  the  defendants  from  construct- 
ing its  reservoir  and  dam.  That  fact,  it  is  contended,  estops 
the  Government  from  relying  on  the  five-years'  limitation 
prescribed  by  the  above  act  of  March  3d,  1891,  c.  561.  But 
this  view  is  without  merit.  The  preliminary  injunction  re- 
ferred to  was  dissolved  July  31st,  1897,  and  was  never  rein- 
stated.    The  supplemental  bill  was  taken  as  confessed  on 


278  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  8. 

May  21st,  1903,  and  a  perpetual  injunction  was  then  awarded 
against  the  defendants.  So  that  between  the  dissolution  of  the 
preliminary  injunction  and  the  granting  of  the  perpetual  in- 
junction more  than  five  years  elapsed,  during  which  the  de- 
fendants were  not  impeded  or  hindered  by  any  injunction 
against  them.  This  is  sufficient  to  show  that  the  point  just 
stated  is  without  merit.  We  need  not,  therefore,  consider 
the  larger  question,  whether  the  five-years'  limitation  pre- 
scribed by  Congress  in  the  above  act  of  March  3d,  1891,  could 
have  been  disregarded  or  enlarged  either  by  the  action  or  non- 
action of  the  parties  or  by  any  order  of  injunction  made  by 
the  court  in  the  progress  of  the  cause. 

There  are  some  minor  questions  in  the  case,  but  they  are 
not  of  substance  and  need  not  be  noticed.  We  perceive  no 
error  of  law  in  the  record,  and  the  judgment  is 

Affirmed. 

Mr.  Justice  McKenna  did  not  participate  in  the  con- 
sideration or  determination  of  this  case. 


f» 


UNITED  STATES  v,  CELESTINE. 

ERROR   TO   THE   CIRCUIT   COURT   OF   THE    UNITED   STATES   FOR 
THE   WESTERN   DISTRICT   OF   WASHINGTON. 

No.  236.    Argued  October  14,  1909.— Decided  December  13,  1909. 

Although  an  Indian  may  be  made  a  citizen  of  the  United  States 
and  of  the  State  in  which  the  reservation  for  his  tribe  is  located, 
the  United  States  may  still  retain  jurisdiction  over  him  for  offenses 
committed  within  the  limits  of  the  reservation;  and  so  held  as  to 
a  crime  committed  by  an  Indian  against  another  Indian  on  the 
Tulalip  Indian  Reservation  in  Washington,  notwithstanding  the 
Indians  had  received  allotments  under  the  treaties  with  the  Omahas 
of  March  16,  1834,  and  of  Point  Elliott  of  January  22,  1835.    Matr 


UNITED  STATES  v,  CELESTINE.  279 

215  U.  S.  Statement  of  the  Case. 

ter  of  Heff,  197  U.  S.  488,  distinguished,  the  Indian  in  that  case 
being  an  allottee  \inder  the  general  allotment  act  of  February  8, 
1887,  c.  119,  24  Stat.  388. 

L^slation  of  Congress  is  to  be  construed  in  the  interest  of  the  Indians; 
and,  in  the  absence  of  a  subjection  in  terms  of  the  individual  Indian 
to  state  laws  and  denial  of  further  jurisdiction  over  him  by  the 
United  States,  a  statute  will  not  be  construed  as  a  renunciation  of 
jurisdiction  by  the  United  States  of  crimes  committed  by  Indians 
against  Indians  on  Indian  reservations. 

The  act  of  May  8,  1906,  c.  2348,  34  Stat.  182,  extending  the  trust 
period  of  allottees  under  the  act  of  1887,  suggests  that  Congress 
believed  it  had  been  hasty  in  its  prior  action  in  granting  citizen- 
ship to  Indians. 

At  the  May  term,  1908,  of  the  Circuit  Court  of  the  United 
States  for  the  Western  District  of  Washington  an  indict- 
ment was  found  against  the  defendant,  the  first  coimt  of 
which  reads: 

*'That  one  Bob  Celestine,  an  Indian,  on  the  thirtieth  day 
of  August,  in  the  year  of  our  Lord  1906,  within  the  limits 
of  the  Tulalip  Indian  Reservation,  within  the  boundaries  of 
the  State  of  Washington,  and  within  said  Western  District 
of  Washington,  Northern  Division,  did,  with  force  and  arms, 
make  an  assault  upon  one  Mary  Chealco,  an  Indian  woman, 
with  an  axe,  which  the  said  Bob  Celestine  then  and  there 
held  in  his  hands,  and  did  then  and  there  feloniously,  willfully, 
knowingly,  and  with  malice  aforethought  strike,  beat,  and 
mortaUy  wound  said  Mary  Chealco  with  said  axe  upon  the 
head  of  the  said  Mary  Chealco,  with  intent  to  kill  and  murder 
her,  the  said  Mary  Chealco,  giving  to  her,  the  said  Mary 
Chealco,  a  mortal  wound  upon  the  head,  from  which  mortal 
woimd  said  Mary  Chealco  then  and  there  languished  and 
died,  within  said  Tulalip  Indian  Reservation,  in  said  Western 
District  of  Washington." 

The  second  count  is  in  similar  terms,  but  charges  in  addi- 
tion that  the  Tulalip  Indian  Reservation,  where  the  offense 
was  committed,  is  "a  place  under  the  exclusive  jurisdiction 
of  the  United  States." 


280  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  215  U.  S. 

By  a  special  plea  the  defendant  challenged  the  jurisdiction 
of  the  Circuit  Court,  alleging  that  at  the  time  of  the  ofifense 
there  had  been  allotted  to  him  as  the  head  of  a  family  certain 
lands  situate  on  the  Tulalip  Indian  Reservation,  within  the 
limits  of  the  State  (then  Territory)  of  Washington,  under 
the  provisions  of  the  treaty  of  January  22,  1855,  (12  Stat. 
927),  and  in  accordance  with  an  executive  order  of  Decem- 
ber 23,  1873,  and  that  a  patent  therefor  was  issued  and  de- 
livered to  him  on  May  19,  1885;  that  he  was  then  a  member 
of  the  Tulalip  tribe  of  Indians;  that  ever  since  that  date  he 
"has  been  and  still  is  a  citizen  of  the  United  States,  and 
therefore  subject  to  the  laws  of  the  Territory  and  State  of 
Washington;"  that  he  "was  bom  within  the  territorial  limits 
of  the  United  States  and  has  always  resided  within  such 
limits,"  and  that,  therefore,  he  was  entitled  to  "all' the  rights, 
privileges  and  immunities  of  said  citizens  of  the  United 
States." 

This  plea  also  alleged  that  the  murdered  woman  was  a 
citizen  of  the  United  States  and  the  widow  of  one  CheaJco 
Peter,  who,  like  the  defendant,  had  received  an  allotment 
of  land  within  the  Tulalip  Reservation,  and  a  patent  thereof 
similar  to  that  of  defendant;  that  she  became  entitled  to 
her  husband's  allotment  upon  his  death,  and  that  the  place 
of  the  commission  of  the  offense  was  upon  the  very  land 
allotted  to  said  Chealco  Peter,  and  without  the  jurisdiction 
of  the  court. 

A  demurrer  by  the  Government  to  the  plea  was  overruled 
and  judgment  entered  sustaining  the  plea. 

A  writ  of  error  to  this  court  was  then  sued  out  by  the 
United  States  under  authority  of  the  act  of  March  2,  1907, 
c.  2564,  34  Stat.  1246. 

Mr,  Assistant  Attorney  General  Harr  for  the  United  States: 

This  case  presents  squarely  for  the  first  time  in  this  court 

the  question  whether  jurisdiction  of  the  crime  of  murder 

committed  by  an  Indian  allottee  upon  allotted  land  of  an 


UNITED  STATES  v,  CELESTINE.  281 

215  U.  S.  Argument  for  the  United  States. 

Indian  reservation  in  a  State  is  vested  in  the  state  or  in  the 
Federal  courts.  A  determination  of  this  question  is  deemed 
important,  because  there  should  be  no  uncertainty  concern- 
ing a  matter  so  vital  to  the  successful  punishment  of  criminals. 
The  Tulalip  Reservation  was  a  legally  constituted  Indian 
reservation.  Re  Wilson,  140  U.  S.  575;  Draper  v.  United 
States,  164  U.  S.  240. 

The  United  States  has  authority  to  define  and  punish 
crimes  by  or  against  Indians  on  reservations  within  the 
States.  United  States  v.  Kagama,  118  U.  S.  375;  Draper  v. 
United  States,  164  U.  S.  240;  United  States  v.  Thomas,  151 
U.  S.  577;  Elk  v.  United  States,  177  U.  S.  529;  United  States 
V.  Bridleman,  7  Fed.  Rep.  894;  United  States  v.  Martin,  14 
Fed.  Rep.  817;  United  States  v.  Bamhart,  22  Fed.  Rep.  285. 

The  United  States  has  not  surrendered  its  criminal  juris- 
diction over  the  Tulalip  Reservation.  Matter  of  Heff,  197 
U.  S.  488,  distinguished. 

Exemption  from  Federal  jurisdiction  is  not  to  be  presumed 
in  absence  of  clear  legislative  provision.  Rxigles  v.  Illinois, 
108  U.  S.  526,  531. 

This  case  lacks  the  element  which  in  the  Heff  case  was 
declared  essential  to  confer  jurisdiction  upon  the  state  courts^ 
to  wit,  a  clear  Federal  legislative  provision  subjecting  the 
Indians  to  state  laws. 

The  act  of  May  8,  1906,  34  Stat.  182,  extending  to  the 
expiration  of  the  trust  period  the  date  when  allottees  under 
the  act  of  1887  shall  be  subject  to  the  state  laws,  and  omitting 
any  references  to  allottees  under  other  laws  and  treaties  is 
significant.  It  indicates  that  Congress  found  it  had  been  too 
hasty  in  placing  the  first-mentioned  allottees  under  the 
jurisdiction  of  the  State,  and  that  it  did  not  think  any  ex- 
tension of  time  necessary  as  to  allottees  under  other  acts 
and  treaties,  because  they  had  not  been  subjected  to  state 
laws. 

Citizenship  is  not  inconsistent  with  continued  Federal  juris- 
diction.   United  States  v.  Logan,  105  Fed.  Rep.  240;  United 


282  OCTOBER  TERM,  1909. 

Aiigiimeiit  for  the  United  States.  215  U.  S. 

States  V.  MvUin,  71  Fed.  Rep.  682;  Rainbow  v.  Young,  161 
Fed.  Rep.  835;  United  States  v.  Rickert,  188  U.  S.  432;  McKay 
V.  Kalyton,  204  U.  S.  458;  Beck  v.  Real  Estate  Co.,  65  Fed. 
Rep.  30;  Farrdl  v.  United  States,  110  Fed.  Rep.  942;  Coombs, 
Petitioner,  127  Massachusetts,  278;  State  v.  Denoyer,  6  N.  Dak. 
586. 

State  V.  Columbia  George,  39  Or^on,  127,  governs  this  ease. 
Columbia  George  was  tried  and  convicted  in  the  Federal 
court.  An  application  by  him  and  Toy  Toy,  with  whom 
he  was  jointly  indicted,  for  leave  to  file  a  petition  for  the 
writ  of  habeas  corpus,  was  denied  by  this  court,  201  U.  S. 
641.  Thereafter  a  petition  by  Toy  Toy  for  a  writ  of  habeas 
corpus  upon  the  ground  that,  as  he  was  a  citizen,  the  Federal 
court  was  without  jurisdiction,  was  denied  by  the  Circuit 
Court  and  its  action  affirmed  by  this  court  on  appeal,  212 
U.  S.  542. 

To  hold  that  the  Federal  coiuts  are  without  jurisdiction 
of  such  offenses,  after  the  state  courts  have  declined  to  exer- 
cise jurisdiction,  might  give  rise  to  a  serious  condition  of 
affairs. 

The  rule  contended  for  does  not  deprive  the  allottee  of  any 
of  the  rights  or  privileges'  of  citizenship.  It  is  not  contended 
that  a  limited  citizenship  is  conferred  upon  allottees,  but 
rather  that  citizenship  is  consistent  with  tribal  existence  and 
Indian  character.  United  States  v.  Red  Estate  Co.,  69  Fed. 
Rep.  886,  891. 

The  offense  in  question  was  committed  on  an  Indian 
reservation  within  the  meaning  of  the  act  of  March  3,  1885. 
Couture  v.  United  States,  207  U.  S.  581;  EeUs  v.  Ross,  64  Fed. 
Rep.  417,  and  see  United  States  v.  Floumoy  Co.,  71  Fed.  Rep. 
576;  United  States  v.  MuUin,  and  Rainbow  v.  Young,  supra. 
The  conclusion  that  allotted  land  is  not  thereby  excepted 
from  a  reservation  and  is  still  Indian  country  within  the 
intention  of  Congress,  seems  to  be  the  only  reasonable  and 
proper  one.  Otherwise  Federal  statutes  relating  to  reserva- 
tions and  the  Indian  country  and  punishing  crimes  therein 


UNITED  STATES  v.  CELESTINE.  283 

216  U.  S.  Opinion  of  the  Court. 

(Rev.  Stat.,  §§  2127-21/)7),  would  cease  to  apply,  and  thus 
Congress,  charged  with  the  duty  to  protect  the  Indians, 
would  be  held  to  have  abandoned  that  duty  entirely,  when 
in  fact  it  only  extended  to  them  the  privileges  of  citizenship. 

There  was  no  appearance  or  brief  for  the  defendant  in 
error. 

Mr.  Justice  Brewer,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

The  fourth  paragraph  of  the  act  of  March  2,  1907,  supra, 
authorizes  a  review  of  a  "decision  or  judgment  sustaining  a 
special  plea  in  bar,  when  the  defendant  has  not  been  put  in 
jeopardy."  The  defendant  in  this  case  had  not  been  put 
upon  trial,  therefore  he  had  not  been  in  jeopardy.  The  de- 
cision of  the  Circuit  Court  sustained  the  special  plea  in  bar. 
This  fourth  paragraph  differs  from  the  two  preceding,  in  that 
the  review  authorized  by  them  is  limited  to  cases  in  which 
"the  decision  or  judgment  is  based  upon  the  invalidity  or 
construction  of  the  statute  upon  which  the  indictment  is 
founded,"  while  no  such  limitation  appears  in  this  parar 
graph.  The  full  significance  of  this  difference  need  not  now 
be  determined,  but  clearly  the  fourth  paragraph  gives  to 
this  court  a  right  to  review  the  precise  question  decided  by 
a  trial  court  in  sustaining  a  special  plea  in  bar,  although 
that  decision  may  involve  the  application  rather  than  the 
invalidity  or  construction,  strictly  speaking,  of  the  statute 
upon  which  the  indictment  was  founded. 

The  general  provision  of  the  statutes  in  reference  to  punish- 
ment of  the  crime  of  murder  committed  within  the  exclusive 
jurisdiction  of  the  United  States  is  found  in  chap.  3,  Title  70, 
Rev.  Stat.,  §§  5339-5391,  as  amended  by  the  act  of  Janu- 
ary 15,  1897,  c.  29,  29  Stat.  487. 

Section  9  of  the  act  of  March  3,  1885,  c.  341,  23  Stat.  385, 
provides  for  the  punishment  of  certain  crimes  by  Indians, 
as  follows: 


284  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

"That  immediately  upon  and  after  the  date  of  the  passage 
of  this  act  all  Indians,  committing  against  the  person  or 
property  of  another  Indian  or  other  person  any  of  the  follow- 
ing crimes,  namely,  murder,  manslaughter,  rape,  assault  with 
intent  to  kill,  arson,  burglary,  and  larceny  within  any  Terri- 
tory of  the  United  States,  .  .  .  and  all  such  Indians 
committing  any  of  the  above  crimes  against  the  person  or 
property  of  another  Indian  or  other  person  within  the  bound- 
aries of  any  State  of  the  United  States,  and  within  the  limits 
of  any  Indian  reservation,  shall  be  subject  to  the  same  laws, 
tried  in  the  same  courts  and  in  the  same  manner,  and  subject 
to  the  same  penalties  as  are  all  other  persons  committing  any 
of  the  above  crimes  within  the  exclusive  jurisdiction  of  the 
United  States." 

By  this  section  Indians  committing  against  other  Indians 
on  a  reservation  in  a  State  any  of  the  crimes  named  are  sub- 
ject to  Federal  laws  and  tried  in  Federal  courts. 

That  the  offense  was  committed  within  the  limits  of  the 
Tulalip  Indian  Reservation  is  distinctly  charged  in  the  in- 
dictment and  not  challenged  in  the  plea  in  bar.  Although 
the  defendant  had  received  a  patent  for  the  land  within  that 
reservation,  and  although  the  murdered  woman  was  the 
owner  of  another  tract  within  such  limits,  also  patented, 
both  tracts  remained  within  the  reservation  until  Congress 
excluded  them  therefrom. 

By  the  second  clause  of  §  3,  Art.  IV,  of  the  Constitution, 
to  Congress,  and  to  it  alone,  is  given  "power  to  dispose  of 
and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States." 
From  an  early  time  in  the  history  of  the  Government  it  has 
exercised  this  power,  and  has  also  been  legislating  concerning 
Indians  occupying  such  territory.  Without  noticing  prior 
acts,  it  is  sufficient  to  refer  to  that  of  June  30,  1834,  c.  CLXI, 
4  Stat.  729,  the  first  section  of  which  reads: 

''Beit  enacted,  That  all  that  part  of  the  United  States  west 
of  the  Mississippi,  and  not  within  the  States  of  Missouri  and 


UNITED  STATES  v,  CELESTINE.  285 

215  n.  S.  Opinion  of  the  Court. 

Louisiana,  or  the  Territory  of  Arkansas,  and,  also  that  part 
of  the  United  States  east  of  the  Mississippi  river,  and  not 
within  any  State  to  which  the  Indian  title  has  not  been 
extinguished,  for  the  purposes  of  this  act,  be  taken  and 
deemed  to  be  the  Indian  country." 

Construing  this  section,  it  was  decided,  in  Boies  v.  Clarkj 
95  U.  S.  204,  209,  that  all  the  country  described  in  the  act 
as  "Indian  country"  remains  such  "so  long  as  the  Indians 
retain  their  original  title  to  the  soil,  and  ceases  to  be  Indian 
country  whenever  they  lose  that  title,  in  the  absence  of  any 
different  provision  by  treaty  or  by  act  of  Congress."  The 
"  section  was  repealed  by  Rev.  Stat.,  §  5596.  Still,  it  was  held 
that  it  might  be  referred  to  for  the  purpoKO  of  determining 
what  was  meant  by  the  term  "Indian  country"  when  found 
in  sections  of  the  Revised  Statutes  which  were  re  enactments 
of  other  sections  of  prior  legislation.  Ex  parte  Crow  Dog, 
109  U.  S.  556;  United  States  v.  Le  Bris,  121  U.  S.  278.  But 
the  word  "reservation"  has  a  different  meaning,  for  while 
the  body  of  land  described  in  the  section  quoted  as  "Indian 
country"  was  a  reservation,  yet  a  reservation  is  not  neces- 
sarily "Indian  country."  The  word  is  used  in  the  land  law 
to  describe  any  body  of  land,  large  or  small,  which  Congress 
has  reserved  from  sale  for  any  purpose.  It  may  be  a  military 
reservation,  or  an  Indian  reservation,  or,  indeed,  one  for  any 
purpose  for  which  Congress  has  authority  to  provide,  and 
when  Congress  has  once  established  a  reservation  all  tracts 
included  within  it  remain  a  part  of  the  reservation  until 
separated  therefrom  by  Congress.  By  the  treaty  of  Janu- 
ary 22,  1855  (12  Stat.  927),  known  as  the  treaty  of  Point 
Elliott,  it  was  provided  that  certain  lands  should  be  reserved 
for  the  "use  and  occupation  of  the  Indians."  And,  further, 
article  3,  "that  the  President  may  establish  the  central 
agency  and  general  reservation  at  such  other  point  as  he  may 
deem  for  the  benefit  of  the  Indians."  On  December  23, 
1873,  the  President  established  the  boundaries  of  the  Tulalip 
Reservation  in  the  Territory  of  Washington.    The  tract  sub- 


286  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

eequently  allotted  to  defendant;  as  well  as  that  upon  which 
the  crime  was  committed,  are  within  the  boundaries  pre- 
scribed in  this  executive  order.  Article  7  of  the  treaty  of 
Point  Elliott  authorizes  the  President  to  set  apart  separate 
tracts  within  the  reservation  to  such  individuals  or  families 
as  were  willing  to  avail  themselves  of  the  privilege  and  locate 
on  the  same  as  a  permanent  home,  on  the  same  terms  and 
subject  to  the  same  regulations  as  are  provided  in  the  sixth 
article  of  the  treaty  with  the  Omahas,  so  far  as  the  same 
may  be  appUcable.  The  treaty  with  the  Omahas,  March  16, 
1854,  (10  Stat.  1043,)  provides  for  the  location  by  an  in- 
dividual or  family  on  land  within  the  Omaha  Reservation, 
its  assignment  for  a  permanent  home,  for  the  issue  of 
a  patent  to  such  person  or  family,  with  conditions  against 
aUenation  or  leasing,  exemption  from  levy,  sale  or  forfeiture, 
not  to  be  disturbed  by  the  State  without  the  consent  of 
Congress;  and,  further,  that  if  the  (p.  1045)  "person  or  family 
shall  at  any  time  neglect  or  refuse  to  occupy  and  till  a  por- 
tion of  the  lands  assigned  and  on  which  they  have  located, 
or  shall  rove  from  place  to  place,  the  President  may,  if  the 
patent  shall  have  been  issued,  cancel  the  assignment ;  .  .  . 
and  in  default  of  their  return  the  tract  may  be  declared 
abandoned,  and  thereafter  assigned  to  some  other  person  or 
family  of  such  tribe,  or  disposed  of  as  is  provided  for  the 
disposition  of  the  excess  of  said  land."  The  patent  issued 
to  the  defendant  recites  that  it  is  issued  under  the  provisions 
of  the  article  referred  to  in  the  treaty  with  the  Omaha  Indians. 
The  plea  does  not  challenge  the  continued  tribal  organiza- 
tion of  the  TulaUp  Indians,  or  question  that  the  tribe,  as 
well  as  the  general  body  of  the  reservation,  continues  under 
the  general  care  of  the  United  States.  Indeed,  at  the  time 
of  the  crime  the  TulaUp  Reservation  was  occupied  by  453 
Indians,  under  the  charge  of  an  Indian  agent.  Rep.  Com. 
Ind.  Affairs,  1906,  pp.  377,  483.  Thirteen  thousand  five 
hundred  and  sixty  acres  have  been  allotted  to  94  of  these 
Indians,  and  the  residue,  8,930  acres,  remains  unallotted. 


UNITED  STATES  v.  CELESTINE.  287 

215  U.  S.  Opinion  of  the  Court. 

Rep.  Com.  Ind.  Affairs,  1908,  p.  162.  The  fact  of  the  patent 
to  Chealeo  Peter  is  all  that  is  claimed  shows  a  want  of  juris- 
diction of  the  United  States  over  the  place  of  the  offense,  but 
the  conditions  of  the  treaty  with  the  Omahas,  made  by  refer- 
ence a  part  of  the  treaty  with  the  Tulalip  Indians,  providing 
for  only  a  conditional  alienation  of  the  lands,  make  it  clear 
that  the  special  jurisdiction  of  the  United  States  has  not  been 
taken  away. 

Eells  et  al.  v.  Ross  (12  C.  C.  A.  205,  Circuit  Court  of  Ap- 
peals of  the  United  States  for  the  Ninth  Circuit)  presented 
the  question  of  the  revocation  of  a  reservation.  The  treaty 
with  the  Puyallup  Indians  contains  like  provisions  in  regard 
to  alienation  and  forfeiture  as  are  in  the  treaty  with  the 
Omahas. 

Circuit  Judge  McKenna,  now  Mr.  Justice  McKenna  of  this 
court,  in  delivering  the  unanimous  opinion  of  that  court,  said 
(p.  207) : 

"  It  is  not  disputed  that  the  lands  are  a  part  of  those  set 
apart  as  the  Puyallup  Reservation,  and  that  the  reservation 
has  not  been  directly  revoked;  but  it  is  contended  that  the 
allotment  of  the  lands  in  severalty,  and  afterwards  making 
the  Indians  citizens,  necessarily  had  the  effect  to  revoke  the 
reservation.  There  is  plausibility  in  the  argument,  and  it 
needs  to  be  carefully  considered.  It  is  clear  that  the  allot- 
ment alone  could  not  have  this  effect,  {The  Kansas  Indians, 
5  Wall.  737)  and  citizenship  can  only  have  it  if  citizenship 
is  inconsistent  with  the  existence  of  a  reservation.  It  is  not 
necessarily  so. 

*'Some  of  the  restraints  of  a  reservation  may  be  inconsistent 
with  the  rights  of  citizens.  The  advantages  of  a  reservation 
are  not ;  and  if,  to  secure  the  latter  to  the  Indians,  others  not 
Indians  are  excluded,  it  is  not  clear  what  right  they  have  to 
complain.  The  act  of  1887,  which  confers  citizenship,  clearly 
does  not  emancipate  the  Indians  from  all  control,  or  abolish 
the  reservations." 

Dick  V.  United  States,  208  U.  S.  340,  docs  not  conflict  with 


288  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

these  views,  for  there  the  place  of  the  o£fense  was  the  village 
of  Culdesac,  which,  although  within  the  boundaries  of  the 
Nez  Perce  Reservation,  as  at  first  established,  was  located 
upon  lands  passed  by  patent  from  the  United  States  under 
the  townsite  laws  to  the  probate  judge  of  Nez  Perce  County, 
and  by  the  townsite  act  such  location  could  only  be  on  public 
lands.    Rev.  Stat.,  §  2380. 

But  it  is  contended  that  although  the  crime  may  have 
been  committed  on  an  Indian  reservation,  yet  it  does  not 
come  within  the  last  sentence  of  §  9  of  the  act  of  March  3, 
1885,  swpraj  by  reason  of  the  fact  that  both  defendant  and 
the  woman  murdered  held  patents  from  the  United  States, 
and  Matter  of  Heff,  197  U.  S.  488,  is  cited  as  authority.  But 
there  are  these  important  differences  between  the  two  cases. 
In  that  the  person  to  whom  the  defendant  sold  liquor  (the 
charge  being  that  of  selling  liquor  to  an  Indian)  had  received 
a  patent  under  the  provisions  of  the  act  of  Congress  of  Feb- 
ruary 8,  1887,  known  as  the  General  Allotment  Act  (c.  119, 
24  Stat.  388),  whereas  the  patents  in  this  case  were  issued 
under  the  authority  of  the  treaty  with  the  Omahas,  March  16, 

1854,  suyray  and  the  treaty  of  Point  Elliott,  January  22, 

1855,  swpra.  It  also  appeared  that  the  sale  was  made,  not 
on  any  reservation,  while  here  the  murder  was  committed 
within  the  limits  of  one. 

Section  5  of  the  act  of  February  8,  1887,  provides  (24  Stat. 
389)  "That  upon  the  approval  of  the  allotments  provided 
for  in  this  act  by  the  Secretary  of  the  Interior,  he  shall  cause 
patents  to  issue  therefor,"  etc.  Section  6  is  as  follows  (24 
Stat.  390) : 

"  Sec.  6.  That  upon  the  completion  of  said  allotments  and 
the  patenting  of  the  lands  to  said  allottees,  each  and  every 
member  of  the  respective  bands  or  tribes  of  Indians  to  whom 
allotments  have  been  made  shall  have  the  benefit  of  and  be 
subject  to  the  laws,  both  civil  and  criminal,  of  the  State  or 
Territory  in  which  they  may  reside;  and  no  Territory  shall 
pass  or  enforce  any  law  den)dng  any  such  Indian  within  its 


UNITED  STATES  v,  CELESTINE.  289 

215  U.  S.  Opinion  of  the  Court. 

jurisdiction  the  equal  protection  of  the  law.  And  every 
Indian  bom  within  the  territorial  Umits  of  the  United  States 
to  whom  allotments  shall  have  been  made  under  the  provi- 
sions of  this  act,  or  under  any  law  or  treaty,  and  every  Indian 
bom  within  the  territorial  limits  of  the  United  States  who 
has  voluntarily  taken  up,  within  said  limits,  his  residence 
separate  and  apart  from  any  tribe  of  Indians  therein,  and  has 
adopted  the  habits  of  civilized  life,  is  hereby  declared  to  be  a 
citizen  of  the  United  States,  and  is  entitled  to  all  the  rights, 
privileges,  and  immunities  of  such  citizens,  whether  said 
Indian  has  been  or  not,  by  birth  or  otherwise,  a  member  of 
any  tribe  of  Indians  within  the  territorial  limits  of  the  United 
States  without  in  any  manner  impairing  or  otherwise  affect- 
ing the  right  of  any  such  Indian  to  tribal  or  other  property.^' 

It  will  be  seen  that  the  first  sentence  of  the  latter  section, 
which  provides  that  the  allottees  shall  be  '*  subject  to  the 
laws,  both  civil  and  criminal,  of  the  State  or  Territory  in 
which  they  may  reside,"  applies  to  allotments  and  patents 
made  under  the  authority  of  that  act,  whereas  the  other 
sentence  refers  to  allotments  made  under  the  act  of  1887, 
or  under  any  law  or  treaty,  and  in  respect  to  the  allottee  it  is 
provided  only  that  he  "is  hereby  declared  to  be  a  citizen  of 
the  United  States,  and  is  entitled  to  all  the  rights,  privileges, 
and  unmunities  of  such  citizens.''  In  other  words,  so  far  as 
the  plea  is  concemed,  it  is  only  that  Celestine  was  a  citizen 
of  the  United  States,  and  entitled  to  all  the  rights,  privileges 
and  immunities  of  such  citizenship. 

We  assume,  without  deciding,  that  although  Celestine  was 
bom  within  the  territorial  Umits  of  the  United  States  he  was 
not,  under  the  first  section  of  the  Fourteenth  Amendment, 
a  citizen  of  the  United  States  prior  to  the  issue  of  the  patent 
to  him;  that  the  jurisdiction  of  the  United  States  was  over 
the  tribe  of  which  he  was  a  member,  and  not  over  him  per- 
sonally; so  that  by  the  act  of  1887  he  was  given  a  citizenship 
in  the  United  States  and  in  the  State  which  did  not  thereto- 
fore belong  to  him.  But,  although  made  a  citizen  of  the 
VOL.  ccxv— 19 


290  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

United  States  and  of  the  State,  it  does  not  follow  that  the 
United  States  lost  jurisdiction  over  him  for  oflfenses  com- 
mitted within  the  limits  of  the  reservation.  We  had  occa- 
sion in  the  Matter  of  Heff^  supra,  to  notice  the  fact  that  the 
first  dealings  with  Indians  were  with  them  as  tribes,  but  that 
of  late  there  had  been  a  change  in  the  policy  and  a  disposition 
to  put  an  end  to  tribal  organization  and  give  to  them  as 
individuals  all  the  rights  of  citizenship,  saying  (197  U.  S.  499) : 

"Of  late  years  a  new  policy  has  found  expression  in  the 
legislation  of  Congress — ^a  policy  which  looks  to  the  breaking 
up  of  tribal  relations,  the  establishing  of  the  separate  Indians 
in  individual  homes,  free  from  national  guardianship  and 
charged  with  all  the  rights  and  obligations  of  citizens  of  the 
United  States.  Of  the  power  of  the  Government  to  carry  out 
this  poUcy  there  can  be  no  doubt.  It  is  under  no  constitu- 
tional obligation  to  perpetually  continue  the  relationship  of 
guardian  and  ward.  It  may  at  any  time  abandon  its  guardian- 
ship and  leave  the  ward  to  assume  and  be  subject  to  all  the 
privileges  and  burdens  of  one  sui  juris.  And  it  is  for  Con- 
gress to  determine  when  and  how  that  relationship  of  guardian- 
ship shall  be  abandoned.  It  is  not  within  the  power  of  the 
courts  to  overrule  the  judgment  of  Congress.  It  is  true  there 
may  be  a  presumption  that  no  radical  departure  is  intended, 
and  courts  may  wisely  insist  that  the  purpose  of  Congress 
be  made  clear  by  its  legislation,  but  when  that  purpose  is 
made  clear  the  question  is  at  an  end.'' 

Notwithstanding  the  gift  of  citizenship,  both  the  defendant 
and  the  murdered  woman  remained  Indians  by  race,  and 
the  crime  was  committed  by  one  Indian  upon  the  person  of 
another,  and  within  the  limits  of  a  reservation.  Bearing  in 
mind  the  rule  that  the  legislation  of  Congress  is  to  be  con- 
strued in  the  interest  of  the  Indian,  it  may  fairly  be  held  that 
the  statute  does  not  contemplate  a  surrender  of  jurisdiction 
over  an  offense  conunitted  by  one  Indian  upon  the  person 
of  another  Indian  within  the  limits  of  a  reservation;  at  any 
rate,  it  cannot  be  said  to  be  clear  that  Congress  intended 


UNITED  STATES  v.  SUTTON.  291 

216  n.  S.  Syllabus. 

by  the  mere  grant  of  citizenship  to  renounce  entirely  its 
jurisdiction  over  the  individual  members  of  this  dependent 
race.  There  is  not  in  this  case  in  terms  a  subjection  of  the 
individual  Indian  to  the  laws,  both  civil  and  criminal,  of  the 
State;  no  grant  to  him  of  the  benefit  of  those  laws;  no  denial 
of  the  personal  jurisdiction  of  the  United  States. 

The  act  of  May  8,  1906,  c.  2348,  34  Stat.  182,  extending 
to  the  expiration  of  the  trust  period  the  time  when  the  al- 
lottees of  the  act  of  1887  shall  be  subject  to  state  laws,  is 
worthy  of  note  as  suggesting  that  Congress,  in  granting  full 
rights  of  citizenship  to  Indians,  believed  that  it  had  been 
hasty.  See,  upon  the  general  questions  discussed,  United 
States  V.  MvUin,  71  Fed.  Rep.  682;  Rainbow  v.  Young y  161 
Fed.  Rep.  835;  State  v.  Columbia  George,  39  Oregon,  127; 
State  V.  Columbia  George,  201  U.  S.  641;  Couture  v.  United 
States,  207  U.  S.  581;  Toy  Toy  v.  Hopkins,  212  U.  S.  542. 

The  judgment  is 

Reversed. 


•*%*• 


UNITED  STATES  v.  SUTTON. 

ERROR  TO  THE   DISTRICT  COURT  OF  THE   UNITED   STATES  FOR 
THE  EASTERN  DISTRICT  OF  WASHINGTON. 

No.  312.    Submitted  October  15,  1909.— Decided  December  20,  1909. 

United  SiaUa  v.  C destine,  anle,  p.  278,  followed,  as  to  continuance 
of  jurisdiction  of  United  States  over  offenses  committed  within 
the  limits  of  an  Indian  reservation. 

The  Indians,  as  wards  of  the  Government,  are  the  beneficiaries  of 
the  prohibition  against  the  introduction  of  liquor  into  Indian 
country;  and,  under  the  Washington  enabling  act,  jurisdiction  and 
control  over  Indian  lands  remains  in  tho  United  States,  and  Con- 
gress has  power  to  prohibit  and  punish  the  introduction  of  liquor 
therein. 


292  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

The  limits  of  an  Indian  reservation  are  not  changed  by  allotments 
in  severalty  during  the  trust  period,  and,  where  the  lands  allotted 
are  subject  to  restrictions  against  alienation  and  to  defeasance,  the 
prohibition  against  liquor  continues  to  be  effective. 

The  defendants  were  indicted  in  the  District  Court  of  the 
United  States  for  the  Eastern  District  of  Washington  for 
introducing  liquor  into  the  Indian  country,  as  thus  stated 
in  the  indictment: 

"To  wit,  into  and  upon  a  certain  Indian  allotment  No.  670, 
within  the  limits  of  the  boundary  of  the  Yakima  Indian  Reser- 
vation, in  the  Eastern  District  of  Washington,  which  said 
allotment  had  theretofore  been  allotted  to  a  certain  Indian, 
a  member  of  the  Yakima  tribe  of  Indians,  named  George 
Wesslikc,  under  and  by  virtue  of  the  provision  of  the  act  of 
Congress  of  February  8,  1887,  entitled  '  An  act  to  provide  for 
the  allotment  of  lands  in  severalty  to  Indians  on  the  various 
reservations,  and  to  extend  the  protection  of  the  laws  of  the 
United  States  and  the  Territories  over  the  Indians,  and  for 
other  purposes,'  (24  Stat.  388,)  said  allotment  being  then  and 
now  one  held  in  trust  by  the  Government  for  said  allottee 
and  being  inalienable  by  the  said  allottee  without  the  consent 
of  the  United  States." 

A  demurrer  was  filed,  and  on  that  demurrer  the  following 
facts  were  agreed  to: 

"1.  That  the  Yakima  Indian  Reservation,  in  the  Eastern 
District  of  Washington,  is  inhabited  by  the  Yakima  and 
other  Indians  under  the  general  charge  and  control  of  an 
Indian  agent  and  superintendent  of  the  United  States. 

"2.  That  prior  to  September  3,  1908,  a  very  large  number 
of  allotments  of  land  within  said  reservation  had  been  made 
to  Indians  entitled  thereto,  which  said  allotments  had  been 
made  and  allotted  under  and  by  virtue  of  the  provision  of 
the  act  of  Congress  of  February  8,  1887,  known  as  the  general 
allotment  act. 

"3.  That  allotment  No.  670,  described  in  the  indictment, 
is  a  part  of  and  within  the  boundaries  of  the  Yakima  Indian 


UNITED  STATES  v,  SUTTON.  293 

215  U.  S.  Statement  of  the  Case. 

Heservation,  and  the  same  had  been  made  and  allotted,  and 
the  usual  trust  patent  thereto  issued  to  the  allottee  named  in 
the  indictment  under  the  provision  of  the  act  of  February  8, 
1887,  prior  to  September,  1908. 

"4.  That  the  trust  limitation  has  not  yet  expired  and  the 
title  to  said  allotment  is  still  being  held  in  trust  by  the  Govern- 
ment; that  the  title  to  said  allotment  is  not  alienable  by  the 
allottee  without  the  consent  of  the  United  States. 

"5.  That  on  or  about  September  3,  1908,  the  defendants 
did  go  on  and  upon  said  allotment  described  in  the  indict- 
ment, taking  and  carrying  with  them  certain  ardent  spirits 
and  intoxicating  liquor,  to  wit,  alcohol,  in  a  demijohn  and 
flasks." 

The  indictment  was  founded  on  the  act  of  January  30, 
1897,  29  Stat.  506,  which  provides: 

"That  .  .  .  any  person  who  shall  introduce  or  attempt 
to  introduce  any  malt,  spirituous,  or  vinous  liquor,  including 
beer,  ale,  and  wine,  or  any  ardent  or  intoxicating  liquor  of 
any  kind  whatsoever  into  the  Indian  country,  which  term 
shall  include  any  Indian  allotment  while  the  title  to  the  same 
shall  be  held  in  trust  by  the  Government,  or  while  the  same 
shall  remain  inalienable  by  the  allottee  without  the  consent 
of  the  United  States,  shall  be  punished  by  imprisonment  for 
not  less  than  sixty  days,  and  by  a  fine  of  not  less  than  one 
hundred  dollars  for  the  first  offense  and  not  less  than  two 
hundred  dollars  for  each  offense  thereafter." 

The  Yakima  Reservation  was  established  under  the  treaty 
of  June  9,  1855, 12  Stat.  951,  which,  in  article  2,  provides: 

"  All  which  tract  shall  be  set  apart,  and,  so  far  as  necessary, 
surveyed  and  marked  out,  for  the  exclusive  use  and  benefit 
of  said  confederated  tribes  and  bands  of  Indians,  as  an  Indian 
reservation;  nor  shall  any  white  man,  excepting  those  in  the 
employment  of  the  Indian  Department,  be  permitted  to  re- 
side upon  the  said  reservation  without  permission  of  the  tribe 
and  the  superintendent  and  agent. 


294  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

"Article  VI.  The  President  may,  from  time  to  time,  at 
his  discretion,  cause  the  whole  or  such  portions  of  such  reser- 
vation as  he  may  think  proper,  to  be  surveyed  into  lots,  and 
assign  the  same  to  such  individuals  or  families  of  the  said 
confederated  tribes  and  bands  of  Indians  as  are  willing  to 
avail  themselves  of  the  privilege,  and  will  locate  on  the  same 
as  a  permanent  home,  on  the  same  terms  and  subject  to  the 
same  regulations  as  are  provided  in  the  sixth  article  of  the 
treaty  with  the  Omahas,  so  far  as  the  same  may  be  appli- 
cable." 

The  demurrer  was  sustained,  and  thereupon  the  Govern- 
ment brought  the  case  here  on  writ  of  error  under  the  act  of 
March  2,  1907,  c.  2564,  34  Stat.  1246. 

Mr.  Assistant  Attorney  General  Harr  for  the  United  States. 

There  was  no  appearance  or  brief  for  the  defendant  in 
error. 

Mr.  Justice  Brewer,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

The  question  whether  the  indictment  chains  any  oflFense 
against  the  laws  of  the  United  States  involves  the  validity  of 
the  act  of  January  30,  1897,  as  applied  to  the  facts  stated, 
and  therefore  the  case  is  one  properly  before  us  under  the  act 
providing  for  writs  of  error  in  certain  instances  in  criminal 
cases.  Ch.  2564,  34  Stat.  1246;  United  States  v.  Keitd,  211 
U.  S.  370,  397. 

We  have  recently  considered,  in  United  States  v.  Ceiestine, 
ante,  the  question  of  the  jurisdiction  of  the  United  States 
over  oflFenses  committed  within  the  limits  of  a  reservation, 
as  also  the  efifect  of  allotments  therein  upon  its  continued 
existence,  and  further  discussion  of  those  matters  is  unneces- 
sary. The  limits  of  the  Yakima  Reservation  were  not  changed 
by  virtue  of  the  allotments  that  are  referred  to  in  the  stipula- 


UNITED  STATES  v,  SUTTON.  295 

215  U.  S.  Opinion  of  the  Court. 

tion  of  facts.  The  lands  allotted  were  subject  to  restrictions 
against  alienation,  and  the  title  which  was  conferred  by  the 
allotments  was  subject  to  defeasance.  Sixth  Article,  Treaty 
with  the  Omahas,  10  Stat.  1043-5;  United  States  v.  C destine. 
The  offense  charged  was  not  one  committed  by  a  white  man 
upon  a  white  man,  United  States  v.  McBratney,  104  U.  S.  621; 
Draper  v.  United  States,  164  U.  S.  240,  or  by  an  Indian  upon 
an  Indian,  United  States  v.  Celestine,  ante,  but  it  was  the  intro- 
duction of  liquor  into  an  Indian  reservation.  In  this  offense 
neither  race  or  color  are  significant.  The  Indians,  as  wards 
of  the  Government,  are  the  beneficiaries,  but  for  their  pro- 
tection the  prohibition  is  against  all,  white  man  and  Indian 
alike.  Legislation  of  this  nature  has  been  for  a  long  time 
in  force.  Fourth  sec,  chap.  174,  Laws  1832,  4  Stat.  564; 
§2139,  Rev.  Stat.  If  the  Yakima  Reservation  were  within 
the  limits  of  a  Territory  there  would  be  no  question  of  the  val- 
idity of  the  statute  under  which  this  indictment  was  found, 
but  the  contention  is  that  the  ofifense  charged  is  of  a  police  na- 
ture and  that  the  full  police  power  is  lodged  in  the  State,  and 
by  it  alone  can  such  offenses  be  punished.  By  the  second 
paragraph  of  §  4  of  the  enabling  act  with  respect  to  the 
State  of  Washington,  (c.  180,  25  Stat.  677,)  the  people  of  that 
State  disclaimed  all  right  and  title  "to  all  lands  lying  within 
said  limits  owned  or  held  by  any  Indian  or  Indian  tribes; 
and  that  until  the  title  thereto  shall  have  been  extinguished 
by  the  United  States,  the  same  shall  be  and  remain  subject 
to  the  disposition  of  the  United  States,  and  said  Indian  lands 
shall  remain  under  the  absolute  jurisdiction  and  control  of 
the  Congress  of  the  United  States."  Construing  this,  in  con- 
nection with  other  provisions  of  the  enabling  act,  it  was  held 
in  Draper  v.  United  States,  164  U.  S.  240,  that  it  did  not  de- 
prive the  State  of  jurisdiction  over  crimes  committed  within 
a  reservation  by  others  than  Indians  or  against  Indians, 
following  in  this  United  States  v.  McBratney,  104  U.  S.  621. 
But  in  terms  "jurisdiction  and  control"  over  Indian  lands 
remain  in  the  United  States,  and  there  being  nothing  in  the 


296  OCTOBER  TERM,  1909. 

^Dabus.  215  XT.  S. 

section  withdrawing  any  other  jurisdiction  than  that  named 
in  Draper  v.  United  States,  undoubtedly  Ciongress  has  the 
right  to  forbid  the  introduction  of  liquor  and  to  provide 
punishment  for  any  violation  thereof.  Couture,  Jr.,  v.  United 
States,  207  U.  S.  581.  It  is  true  that  only  a  per  curiam  opin- 
ion was  filed  in  that  case,  and  the  judgment  was  affirmed  on 
the  authority  of  United  States  v.  Rickert,  188  U.  S.  432; 
McKay  v.  KalyUm,  204  U.  S.  458,  but  an  examination  of  the 
record  shows  that  its  facts  are  similar  to  those  in  the  present 
case.  See  also  an  opinion  by  Shiras,  District  Judge,  in  United 
States  V.  Midlin,  71  Fed.  Rep.  682,  and  one  by  Circuit  Judge 
Van  Devanter,  speaking  for  the  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit,  in  Rainbow  v.  Young,  161  Fed.  Rep.  835. 

Without  pursuing  the  discussion  further,  we  are  of  opinion 
that  the  District  Court  erred  in  its  ruling,  and  the  judgment 

is 

Reversed. 


■•♦^ 


COMMISSIONERS  OF  SANTA  FE  COUNTY  v.  TERRI- 
TORY OF  NEW  MEXICO  EX  REL.  COLER. 

SAME  V.  SAME. 

APPEALS  FROM  THE  SUPREME  COURT  OP  THE  TERRITORY  OP 

NEW  MEXICO. 

Nob.  42, 43.    Submitted  November  29, 1909.— Decided  December  20, 1909. 

Although  a  defense  to  the  merits  if  pleaded  in  the  original  action 
might  have  prevented  rendition  of  the  judgment,  it  cannot  be 
urged  to  prevent  mandamus  from  issuing  to  enforce  the  judgment. 

Under  the  laws  of  New  Mexico,  where  there  is  no  possible  excuse 
for  a  board  of  county  commissioners  not  to  comply  with  a  judgment, 
a  peremptory  writ  of  mandamus  in  the  first  instance  is  authorized. 

Where  the  bill  shows  it  is  clearly  the  purpose  of  defendant  officers 
not  to  perform  a  duty  imposed  upon  them,  demand  is  not  necessary 
before  suit  for  mandamus. 


SANTA  FE  COUNTY  v.  COLER.  297 

215  U.  S.  Argument  for  Appellant. 

Where  parts  of  a  county  have  been  detached  by  statute  which  pro- 
vides for  the  detached  portions  bearing  their  proportion  of  indebted- 
ness, the  counties  to  which  those  portions  are  attached  are  not 
necessary  parties  to  a  suit  to  recover  obUgations  of  the  original 
county.  After  judgment  the  original  county  which  is  primarily 
liable  may  enforce  contribution  through  the  proper  officers  for  the 
proportionate  share  of  the  detached  portions. 

In  this  case  it  was  held  that  the  facts  justified  the  amount  of  the 
tax  levy  required  by  the  writ  of  mandamus  as  modified  by  the 
Supreme  Coiurt  of  the  Territory. 

Practice  of  the  courts  in  a  Territory  is  based  upon  local  statutes  and 
procedure  and  this  coiurt  is  not  disposed  to  review  the  decisions  of 
the  Supreme  Court  of  the  Territory  in  such  cases,  and,  following  the 
Supreme  Court  of  the  Territory  of  New  Mexico,  this  court  holds  that 
the  power  of  that  court  to  affirm  or  reverse  and  remand  includes 
the  power  to  modify,  and  extends  to  proceedings  in  mandamus. 

14  New  Mexico,  134,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr,  A .  B.  Renehan  for  appellant : 

The  peremptory  writ  of  mandamus  should  not  have  been 
issued  without  a  hearing  or  opportunity  for  respondents 
to  be  heard.  The  writ  is  confined  to  the  requirement  of 
official  duties  of  a  ministerial  character.  2  SpelUng,  Ex.  Rem., 
§§  1432-1434,  1437. 

The  court  in  mandamus  proceedings  can  inquire  into  the 
original  judgment  so  far  as  to  ascertain  whether  the  claim 
is  legally  payable  out  of  the  taxes  sought  to  be  appfied. 
Railroad  Co.  v.  New  Mexico,  72  Pac.  Rep.  14;  Brownsville  v. 
Loague,  129  U.  S.  505. 

The  mandamus  cannot  be  issued  as  there  was  no  demand 
before  suit.  Spelling,  Ex.  Rem.,  §§  1381,  1447.  The  action 
should  have  been  directed  against  the  treasurer  of  the  county 
and  not  against  the  county  board.  Sections  4021,  4062,  C.  L. 
1897;  and  see  §343;  Bass  v.  Taft,  137  U.  S.  752;  Ex  parte 
Rowland,  104  U.  S.  615. 

Where  the  facts  are,  as  in  this  case,  disputed,  a  peremptory 
writ  cannot  issue  in  the  first  instance.    13  Ency.  PI.  &  Pr.  722; 


298  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

and  see  also  13  Ency.  PI.  &  Pr.  773-775;  StaU  v.  Goodfdlow, 
1  Mo.  App.  145. 

The  Supreme  Court  of  New  Mexico  had  no  jurisdiction  to 
modify  the  judgment  of  the  lower  court  by  changing  the 
theory  and  cause  of  action.  Under  C.  L.  1897,  §  897,  the 
power  of  the  appellate  court  is  limited  to  revising  or  modif3dng 
a  judgment  only  in  actions  at  law  or  equity  and  not  in  such 
proceedings  as  mandamus.  Territory  v.  County  CommiS' 
sionerSj  5  New  Mex.  17.  There  being  no  statute  in  the  Ter- 
ritory providing  for  jury  trials  in  mandamus  common-law 
procedure  governs  and  the  Supreme  Court  can  only  reverse 
or  affirm.  State  v.  Survannee  County,  21  Florida,  1 ;  Castle  v. 
Lawler,  47  Connecticut,  340;  and  see  §  10,  C.  L.  1897,  p.  43, 
act  of  September  30,  1850. 

The  remedy  given  by  the  statute,  §  343,  C.  L.  1897,  is  ex- 
clusive. Fourth  Nat.  Bank  v.  Francldyn,  120  U.  S.  751;  7 
Ency.  PI.  &  Pr.  372. 

The  pleading  being  on  information  and  belief  is  insufficient 
as  the  pleader  had  knowledge  of  the  facts.  Jones  v.  Pearl 
Mining  Co.,  20  Colorado,  417;  Nichols  v.  Hubert,  150  Missouri, 
620. 

The  counties  of  Rio  Arriba  and  Torrance  were  necessary 
parties  under  the  existing  laws  of  the  Territory.  Subsec- 
tion 5,  C.  L.  1897,  subs.  175;  §  6,  ch.  114,  L.  1905;  ch.  70, 
L.  1903;  ch.  24,  L.  1903;  ch.  20,  L.  1903. 

Under  the  act  of  June  8,  1878,  c.  168,  20  Stat.  101,  ex- 
planatory of  §  1889,  Rev.  Stat.,  the  Territory  was  prohibited 
from  issuing  these  bonds.  Lewis  v.  Pinia,  155  U.  S.  67. 
Although  held  valid  in  Coler  v.  County  Comnnssioners,  6  New 
Mex.  88,  the  question  of  their  vaUdity  under  the  act  was  not 
raised.  The  validating  act  of  June  16,  1897,  c.  30,  29  Stat. 
487,  although  construed  in  Utter  v.  Franklin,  172  U.  S.  498, 
does  not  validate  these  bonds  as  it  is  too  indefinite  to  de- 
termine which  bonds  are  vahdated.  There  is  no  element  of 
res  judicata  in  this  case.  The  judgments  are  not  attacked,. only 
the  method  of  enforcement  and  the  excessive  amount  of  the 


SANTA  FE  COUNTY  v.  COLER.  299 

215  U.  S.  Opinion  of  the  Court. 

levy.  RaiLvxayCo.  v.  Territory j  72  Pac.  Rep.  14;  United  States 
V.  Macon  County,  99  U.  S.  591;  BrovmsmUe  v.  Loague,  129 
U.  S.  502. 

Mr.  Charles  A.  Spiess  for  appellee. 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

These  appeals  are  prosecuted  to  review  judgments  of  the 
Supreme  Court  of  New  Mexico,  modifsdng,  and  affirming  as 
modified,  judgments  of  mandamus  of  the  District  Court  of 
Santa  F6  County,  commanding  the  appellants  to  levy  a  tax 
of  ten  mills  in  each  case  on  each  dollar  of  taxable  property  in 
the  county,  to  pay  certain  judgments  for  the  amount  of  prin- 
cipal and  interest  upon  bonds  issued  by  the  county.  The 
cases  are  here  on  separate  records,  but  as  they  are  submitted 
together  we  dispose  of  them,  as  the  Supreme  Court  of  the 
Territory  did,  in  one  opinion. 

The  proceedings  were  commenced  by  petitions,  which  are 
alike,  except  as  to  the  amount  of  the  judgment  recovered. 
In  No.  42  it  is  alleged  to  be  $60,926.02;  in  No.  43  it  is  alleged 
to  be  $74,358.19.  Both  judgments  were  recovered  in  the 
District  Court  of  the  county  in  which  the  petitioners  (appel- 
lees here)  were  complainants  and  the  board  of  county  com- 
missioners were  defendants.  It  is  alleged  that  the  judgments 
ordered  the  sums  due  as  above  stated,  and  the  interest  thereon 
to  become  due  at  five  per  cent  per  annum  from  the  date  of 
the  judgments,  *'to  be  assessed  and  levied  upon  and  out  of 
the  taxable  property  situate  in  the  said  county  of  Santa  F6, 
and  to  cause  the  same  to  be  collected  in  the  manner  pro- 
vided by  law,  and  to  pay  the  same  out  of  the  treasury  of  said 
county  to  the  said  complainants,  their  legal  representatives  or 
assignees,  upon  the  delivery  of  a  proper  voucher  therefor." 
Default  in  the  payment  of  each  of  the  judgments  and  its 
requirements  is  alleged,  and  that  the  board  held  a  meeting 
during  the  month  of  July  or  August,  1905,  and  made  a  levy 


300  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

for  various  territorial  purposes,  but  "wholly  failed  and  re- 
fused to  make  any  levy  whatsoever,  and  still  fail  and  refuse 
to  make  any  levy  whatsoever,  for  the  said  year  of  1905,  for 
the  purpose  of  raising  funds  to  pay  the  aforesaid  judgment 
and  interest  and  costs  thereon."  The  want  of  a  plain,  speedy 
and  adequate  remedy  at  law  is  also  ^eged.  Peremptory 
writs  of  mandamus  were  issued  without  a  hearing. 

Subsequently  the  appellants  filed  a  petition  in  each  case 
in  the  District  Court  and  prayed  "that  the  peremptory  order 
be  suspended  herein,  and  that  they  be  permitted  to  show 
cause  and  be  heard  before  the  order  and  writ  are  made  per- 
manent." 

To  sustain  this  prayer  they  alleged  that  at  the  date  of  the 
rendition  of  the  judgments  of  appellees  all  of  the  property 
within  the  county  of  Santa  F6  subject  to  taxation  was  liable 
for  the  payment  of  its  pro  rata  of  the  judgments;  that  the 
thirty-fifth  legislative  assembly  "eliminated"  portions  of 
Santa  F6  County,  and  attached  them  respectively  to  the 
county  of  Rio  Arriba  and  the  county  of  Torrance,  and  made 
them  subject  to  their  proportions  of  the  indebtedness  of 
Santa  F€  County;  that  the  taxable  property  situate  therein 
is  liable  for  its  part  of  the  indebtedness;  that  the  county 
commissioners  are  without  jurisdiction  to  levy  and  assess 
taxes  upon  it,  and  that  the  peremptory  writs  include  only 
"the  property  and  territory  within  the  present  boundaries" 
of  Santa  F6,  and  do  not  pretend  to  include  that  in  Rio  Arriba 
and  Torrance;  that  by  a  mandamus  issued  out  of  the  district 
court  on  the  twenty-fifth  day  of  January,  1901,  the  county 
commissioners  were  required  to  levy  a  tax  upon  the  taxable 
property  in  Santa  F6  sufficient  in  amount  to  produce  a  sum 
of  $135,284.19,  with  interest  thereon  from  the  twenty-fourth 
of  September,  1900,  until  paid  at  five  per  cent  per  annum, 
and  $30.00  costs,  the  said  sum  being  for  the  amount  of  the 
judgments  in  cases  4091  and  4092  of  the  district  court  of 
Santa  F^  County;  that  the  board  obeyed  the  writ  and  levied 
eighty-two  mills  on  each  dollar  of  taxable  valuation,  and 


SANTA  FE  COUNTY  r.  COLER.  301 

215  U.  8.  Opinion  of  the  Ck>urt. 

certified  the  same  to  the  treasurer  and  ez  offijdo  tax  collector 
of  the  county^  and  directed  him  to  place  the  same  on  the  tax 
rolls  and  collect  in  the  manner  provided  by  law ;  that  the  levy 
is  still  standing  on  the  tax  rolls  of  the  county,  and  is  a  lien 
upon  the  taxable  property  of  the  county  as  then  existing, 
and  subject  to  the  payment  of  the  judgments;  that  the  com- 
missioners are  without  authority  to  enforce  the  same,  and 
that  the  levy  is  ample  and  sufficient  to  cover  the  amount  of 
the  judgments  in  cases  Nos.  4091  and  4092,  and  that  the  levy 
of  ten  mills  in  each  case  is  largely  in  excess  of  the  amount 
required,  and  is  "unjust  and  unfair"  to  the  taxpayers  of  the 
county  of  Santa  F6,  and  ruinous  to  its  "progress  and  pros- 
perity." It  is  alleged  that  the  board  is  entitled  to  be  heard 
on  the  amount  of  levy,  or  whether  any  levy  should  be  ordered, 
as  there  exists  a  legal  and  adequate  levy  to  cover  the  judg- 
ments; that  it  is  impossible  to  determine  the  amount  of  levy 
necessary  to  be  made  for  the  year  succeeding  1905  until  the 
tax  roll  for  that  year  has  been  completed  and  the  amount  of 
taxable  property  determined;  that  the  board  should  not  be 
held  in  default  until  the  time  shall  arrive  when  the  levy  can 
be  made,  and  they  shall  have  failed  to  perform  their  duty; 
that  the  levy  of  the  tax,  as  required  by  the  writ,  is  not  one 
which  the  law  "enjoins  as  a  duty  resulting  from  an  ofl5ce, 
trust  or  station,"  because  the  levy  of  eighty-two  mills,  when 
collected,  wiD  be  sufficient  to  pay  the  judgments,  and  that 
it  is  not  a  duty  of  the  board  to  collect  it,  but  "the  duty  of  the 
treasiu^r  and  ex  officio  tax  collector  of  Santa  F6  County." 
It  is  alleged  appellees  have  a  plain,  speedy  and  adequate 
remedy  at  law. 

As  an  additional  ground  of  the  motions,  it  is  alleged  that 
the  act  of  Congress,  by  which  the  bonds  are  "pretended  to 
have  been  validated,  approved,  and  confirmed,  is  inaefinite, 
uncertain,  and  incapable  of  reasonable  interpretation  and 
enforcement,  so  as  to  be  applied  to  any  bonds  issued  by  the 
county  of  Santa  F6,"  and  does  not  sufiiciently  identify  what 
bonds  are  intended  to  be  validated,  approved  and  confirmed; 


302  OCTOBER  TERM,  1909. 

OpiniiHi  of  the  Ck>urt.  215  U.  S. 

nor  what  holders  of  the  bonds,  it  being  alleged  that  they  "are 
subjects  of  different  ownership  and  are  not  all  in  the  hands  of 
one  person,  and  it  cannot  be  detennined  from  the  said  act  of 
Congress  what  holder  of  said  bonds,  in  excess  of  the  amount 
named  in  the  said  act  of  Congress,  shall  not  have  the  benefits 
of  validation/'  And  further,  that  at  the  time  of  the  passage 
of  the  act  of  Congress  there  was  more  than  one  refunding  act 
in  force  in  the  Territory,  but  what  refunding  act  is  referred  to 
by  the  act  of  Congress  is  not  disclosed. 

The  motions  to  suspend  the  peremptory  writs  were  denied 
and  the  orders  denying  them  were  affirmed  by  the  Supreme 
Court  of  the  Territory.  The  latter  court,  however,  modified 
the  writs,  as  will  be  presently  pointed  out. 

The  assignments  of  error  in  the  Supreme  Court  of  the  Terri- 
tory repeated  and  emphasized  the  grounds  urged  in  the 
motions  to  suspend  the  peremptory  writs  of  mandamus.  In 
this  court  the  modification  of  the  judgments  by  the  Supreme 
Court  of  the  Territory  is  attacked  and  some  new  contentions 
are  made. 

The  case  is  submitted  on  briefs,  and  we  shall  not  attempt 
to  trace  an  exact  correspondence  of  the  arguments  of  appel- 
lants with  the  assignments  of  error,  nor  indeed  shall  we  follow 
the  details  of  the  argument,  but  consider  those  matters  only 
which  we  think  can  in  any  way  affect  the  merits  of  the  con- 
troversy. It  will  be  observed  in  the  beginning  that  the  writs 
of  mandamus  issued  by  the  District  Court  are  but  the  execu- 
tion by  it  of  its  judgments  of  the  twenty-fourth  of  September, 
1900,  the  amounts  of  which  the  board  of  commissioners  were 
ordered  to  assess  against  the  taxable  property  of  the  county 
and  pay  the  same.  We  may  say,  therefore,  at  the  outset  that 
whatever  could  have  been  ui^ed  to  prevent  the  rendition  of 
the  judgments  cannot  now  be  ui^ed  to  prevent  their  enforce- 
ment. This  disposes  of  the  defense  made  against  the  orders 
under  review,  that  the  act  of  Congress  validating  the  bonds 
is  uncertain  and  indefinite,  even  if  it  had  merit  otherwise. 
The  objections  that  are  urged  against  the  act  of  Congress  are 


SANTA  FE  COUNTY  v.  COLER.  303 

216  U.  S.  Opinion  of  the  Court. 

that  it  cannot  be  understood  from  it  what  refunding  act  is 
referred  to,  there  being  two,  it  is  contended,  or  whether  all 
of  the  bonds  issued  under  it  have  been  vaUdated  or  only  an 
amount  thereof,  not  exceeding  $172,500.00,  and  if  no  more 
than  $172,500.00,  which  bonds  have  been  validated.  And 
it  is  urged  further  that  there  is  no  identification  of  what 
holders  of  the  bonds  in  excess  of  the  amount  named  in  the 
act  of  Congress  shall  not  have  the  benefits  of  the  validation. 
Manifestly  such  defenses  should  have  been  set  up  in  the 
original  actions  and  are  now  precluded  by  the  judgments 
therein  rendered.  It  is  established  by  the  judgments  that 
the  amount  of  bonds  issued  was  in  accordance  with  the  act 
of  Congress  and  was  not  excessive  in  amount,  and  also  that 
the  plaintiffs  in  the  action  (appellees  here)  were  legal  owners 
of  such  bonds  and  entitled  to  the  "benefits  of  vaUdation." 
Murphy  v.  Utter,  186  U.  S.  95,  113.  The  appellants,  there- 
fore, are  confined  to  the  other  objections  urged  by  them. 

The  principal  of  these  objections  is  that  peremptory  writs 
should  not  have  been  issued  without  a  hearing,  and  that  there 
should  have  been  a  demand  made  of  the  commissioners  before 
suit.  As  to  the  first,  it  may  be  said  that  it  probably  appeared 
to  the  District  Court  that  the  board  could  have  no  possible 
excuse,  and  in  such  case  a  peremptory  writ  is  authorized  in 
the  first  instance  by  the  laws  of  the  Territory.  By  §  2764  of 
the  Compiled  Laws  of  New  Mexico  for  the  year  1897  it  is  pro- 
vided that  "  when  the  right  to  require  the  performance  of  the 
act  is  clear,  and  it  is  apparent  no  valid  excuse  can  be  given 
for  not  performing  it,  a  peremptory  mandamus  may  be 
allowed  in  the  first  instance.'' 

The  second  ground  is  also  untenable.  The  original  judg- 
ments expressed  the  obligation  of  the  board.  They  imposed 
the  duty  of  levying  taxes  to  pay  them,  and,  it  is  alleged,  that 
the  board  had  levied  taxes  for  other  territorial  and  county 
purposes,  but  had  failed  and  refused  to  make  any  levy  what- 
ever to  pay  the  judgments.  In  other  words,  it  is  averred, 
that  it  is  clearly  the  purpose  of  the  board  not  to  perform  the 


304  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

duty  imposed  upon  it.  In  such  a  case  no  demand  is  necessaiy. 
Northern  Pacific  R.  R.  v.  Dwston,  142  U.  S.  492,  508. 

We  are  therefore  brought  to  the  consideration  of  the  suffi- 
ciency of  the  excuses  which  the  board  made  in  its  motions  to 
suspend  the  writs.  We  may  briefly  repeat  them:  (1)  that 
portions  of  Santa  F6  County  were  attached  to  other  counties, 
which  portions  are  subject  to  the  payment  of  the  judgments, 
and  that  the  board  is  without  jurisdiction  over  them;  (2) 
that  a  levy  of  eighty-two  mills  had  been  made,  which  is  a 
lien  upon  the  property  of  Santa  F6  County  "  as  then  existing," 
and  that  the  board  is  without  authority  to  enforce  the  collec- 
tion of  the  levy;  (3)  that  the  levy  of  twenty  mills  (ten  in  each 
case)  is  excessive;  (4)  that  the  board  was  entitled  to  be  heard 
as  to  the  amount  of  the  levy,  or  whether  any  levy  was  neces- 
sary, ''  there  existing  upon  the  tax  rolls  a  legal  and  adequate 
levy  to  cover"  the  judgments  which  it  is  the  duty  of  the  tax 
collector  to  collect;  (5)  that  it  was  impossible  to  determine 
the  amount  of  the  levy  necessary  for  the  year  succeeding  the 
year  1905  until  the  rolls  for  that  year  had  been  completed 
and  the  amount  of  taxable  property  determined;  (6)  that  the 
board  is  not  in  default  and  should  not  be  held  liable  until  in 
default. 

The  District  Court  evidently  considered  that  these  excuses 
were  without  substantial  merit,  and  such  also  was  the  view  of 
the  Supreme  Court  of  the  Territory.  To  the  first,  that  is  that 
the  portions  of  Santa  F£  County  which  had  been  s^regated 
from  it  should  have  been  included  in  the  writs,  it  was  replied 
by  the  Supreme  Court  that  it  was  provided  by  Chapter  20  of 
the  Session  Laws  of  1903  that  such  segr^ated  portions  were 
required  to  contribute  their  just  proportion  to  the  bonded 
debt  of  Santa  F6,  that  pro\ision  was  made  for  assessment, 
levy  and  collection  of  such  proportion  by  the  officers  of  the 
new  county  upon  the  order  of  the  old  county,  and  that  the 
money  collected  should  be  paid  into  the  treasury  of  the  old 
county.  It  was  therefore  decided  that  the  county  of  Santa 
F£  could  ''compel  contribution  from  the  two  other  counties 


SANTA  FE  COUNTY  v.  COLER.  305 

216  U.  S.  Opinion  of  the  Court. 

which  had  received  a  portion  of  its  territory,  in  proportion 
to  the  amount  of  taxable  property  received,  and  this  is  the 
method  provided  by  law."  This  view  of  the  statute  is  not 
directly  attacked  by  appellants,  and,  if  it  may  be  said  that 
the  general  argument  is  a  criticism  of  it,  the  answer  is  what 
was  said  in  English  v.  Arizona,  214  U.  S.  369,  363,  that  "un- 
less in  a  case  of  manifest  error,  this  court  will  not  disturb  a 
decision  of  the  Supreme  Court  of  a  Territory  construing  a 
local  statute."  Chapter  20  of  the  Session  Laws  of  1903  is  an 
answer  also  to  other  contentions  of  appellants.  If  the  county 
of  Santa  F6  is  primarily  liable  for  the  bonds  she  is  the  proper 
party  to  an  action  upon  them,  and  through  her  officers  the 
payment  of  the  judgments  recovered  can  be  enforced.  The 
contention  of  appellants,  therefore,  that  the  counties  of  Rio 
Arriba  and  Torrance  are  "necessary  parties  to  a  complete 
determination  of  the  case,"  is  untenable,  as  indeed  all  other 
contentions  that  are  based  upon  the  addition  to  those  counties 
of  portions  of  Santa  F6  County. 

The  most  serious  contentions  of  appellants  are  that  the 
levy  of  eighty-two  mills  was  sufficient  to  pay  the  judgments, 
interest  and  costs,  and  that  the  levy  of  twenty  mills  in  addi- 
tion was  excessive.  We  think,  however,  that  the  reply  made 
by  the  Supreme  Court  of  the  Territory  adequately  disposed 
of  them.  The  learned  court  pointed  out  that  the  resolution 
of  the  board  of  county  commissioners,  a  copy  of  which  appears 
in  the  record,  showed  that  the  levy  of  eighty-two  mills  had 
the  purpose  only,  and  was  sufficient  only,  to  pay  the  then 
amount  of  the  judgments,  together  with  interest.  It  was 
further  pointed  out  that  the  interest  to  accrue  was  not  pro^ 
vided  for,  and  that  it  amounted  on  the  day  when  the  peremp- 
tory writs  of  mandamus  were  issued  to  $32,874.05.  It  fol- 
lows necessarily,  as  the  court  said,  that  the  contention  that 
the  eighty-two  mills  levied  was  sufficient,  "is  unfounded  and 
untrue  in  fact."  To  the  contention  that  the  twenty  mills 
levied  are  excessive,  in  that  they  are  more  than  sufficient  to 
pay  $32,874.05,  the  court  replied  that,  if  this  were  so,  the 
VOL.  ccxv — 20 


306  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  TJ.  S. 

peremptory  writs  should  not  have  been  issued.  But,  the 
court  added,  it  is  not  shown  that  the  assessable  value  of  prop- 
erty in  Santa  F6  County  has  increased,  while  it  does  appear 
on  the  other  hand  that  portions  of  the  county  had  been  cut 
off;  therefore,  it  was  said,  it  is  fair  to  presume  *'that  the 
assessed  valuation  of  the  county  is  not  in  excess  of  what  it 
was  in  1901,  when  the  eighty-two  mills  levy  was  made." 
From  this  presumption  it  was  concluded  that  twenty  mills 
would  produce,  if  collected  in  full,  $32,996.00,  an  excess  only 
of  $112.05.  And  it  was  observed  that  since  the  peremptory 
writs  were  issued  interest  had  accrued  to  the  amount  of 
$10,000.00. 

The  writs  required  not  only  the  levy  of  twenty  mills  for 
the  year  1905,  but  for  each  and  every  year  thereafter  and 
until  the  judgments  with  interest  and  costs  be  paid.  This 
the  Supreme  Court  pronounced  error,  and  modified  the  judg- 
ments by  striking  out  the  requirements  for  a  continuous  levy. 
This  appellants  assign  as  error,  contending  that  the  Supreme 
Court  had  no  jurisdiction  to  modify  the  judgments  of  the 
lower  court,  and  that  by  doing  so  it  changed  the  "theory  and 
cause  of  action.''  The  argument  to  sustain  the  contention  is 
somewhat  roundabout.  Exclusive  original  jurisdiction  in 
mandamus,  it  is  said,  is  conferred  on  the  District  Court  by 
§  2771  of  the  laws  of  the  Territory,  and,  while  an  appeal  lies 
to  the  Supreme  Court  as  in  other  civil  actions  (§  2772),  that 
the  power  of  the  court  to  modify  the  judgment  of  a  district 
court,  given  by  §  897,^  does  not  extend  to  a  judgment  in 

^  ^^  In  all  cases  now  pending  in  the  Supreme  Court  or  which  may 
be  hereafter  pending  in  the  Supreme  Court,  and  which  may  have 
been  tried  by  the  equity  side  of  the  court,  or  which  may  have  been 
tried  by  a  jury  on  the  common  law  side  of  the  court,  or  in  which  a 
jury  may  have  been  waived  and  the  case  tried  by  the  court  or  the 
judge  thereof,  it  shall  be  the  duty  of  the  Supreme  Court  to  look  into 
all  the  rulings  and  decisions  of  the  court  which  may  be  apparent  upon 
the  records,  or  which  may  be  incorporated  in  the  bill  of  exceptions, 
and  pass  upon  all  of  them  and  upon  the  errors  if  any  shall  be  found 
therein,  in  the  rulings  and  decisions  of  the  court  below,  grant  a  new 


SANTA  FE  COUNTY  v,  COLER.  307 

215  U.  S.  Opinion  of  the  Court. 

mandamus.  The  jurisdiction  of  the  Supreme  Court,  it  is 
urged,  *'was  simply  to  aflSrm  or  reverse  and  remand."  This, 
it  will  be  observed,  is  very  general.  It  would  seem  even  to 
imply  that  the  Supreme  Court  has  not  even  the  power  of  di- 
rection, but  must  leave  the  District  Court  to  get  right  ulti- 
mately through  successive  judgments,  appeals  and  reversals. 
And  the  anomaly  is  attempted  to  be  sustained  by  sajdng  that 
mandamus  is  not  included  in  the  useful  power  given  to  the 
Supreme  Court  by  §  897  in  cases  taken  to  it  to  "  render  such 
other  judgment  as  may  be  right  and  just  and  in  accordance 
with  law,"  because,  it  is  said,  that  mandamus  "is  not  a  case 
on  the  equity  side  of  the  court,  nor  is  it  one  tried  on  the  law 
side  with  a  jury,  nor  is  it  one  in  which  a  jury  has  been  waived 
and  trial  had  by  the  court  or  judge,  especially  as  concerns  the 
present  proceeding."  This  is  a  misunderstanding  of  the 
statute.  Its  purpose  is  to  not  only  give  the  power  to  review, 
but  to  prevent  its  defeat  through  the  distinction  between 
causes  of  action  and  modes  of  trial.  Further  argument  is 
unnecessary.  Even  if  the  contention  had  grounds  of  support 
it  would  be  answered  by  the  case  of  English  v.  Arizona,  214 
U.  S.  359,  and  the  case  of  Arviijo  v.  Armijo,  181  U.  S.  558, 
561.  In  the  latter  case  we  said  that  practice  "in  the  courts 
of  the  Territory  is  based  upon  local  statutes  and  procedure, 
and  we  are  not  disposed  to  review  the  decision  of  the  Supreme 
Court  in  such  cases.  Sweeney  v.  Lomme,  22  Wall.  208."  Of 
the  other  contentions  of  appellants,  it  is  enough  to  say  that 
they  are  without  merit. 

Judgments  affirmed, 

trial  or  render  such  other  judgment  as  may  be  right  and  just,  and 
in  accordance  with  law;  and  said  Supreme  Court  shall  not  decline  to 
pass  upon  any  question  of  law  or  fact  which  may  appear  in  any  record 
either  upon  the  face  of  the  record  or  in  the  bill  of  exceptions,  because 
the  cause  was  tried  by  the  court  or  judge  thereof  without  a  jury,  but 
shall  review  said  cause  in  the  same  manner  and  to  the  same  extent 
as  if  it  had  been  tried  by  a  jury." 


308  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 


ILLINOIS  CENTRAL  RAILROAD  COMPANY  v. 

SHEEGOG. 

ERROR  TO  THE  COURT  OF  APPEALS  OF  THE  STATE  OF 

KENTUCKY. 

No.  41.    Argued  December  12,  1909.— Decided  December  20,  1909. 

Where  the  joinder  of  the  resident  and  the  non-resident  defendants 
prevents  removal  to  the  Federal  court,  the  fact  that  on  the  trial 
the  jury  finds  against  the  non-resident  defendant  only  has  no 
bearing  on  the  question  of  removal  if  the  joinder  was  not  fraudulent. 

Allegations  of  fact,  so  far  as  material  in  a  petition  to  remove,  if  con- 
troverted, must  be  tried  in  the  Federal  court,  and  therefore  must 
be  taken  to  be  true  when  the  state  court  fails  to  consider  them. 

A  plaintiff  may  sue  the  tort-feasors  jointly  if  he  sees  fit,  regardless  of 
motive,  and  an  allegation  that  resident  and  non-resident  tort- 
feasors are  sued  for  the  purpose  of  preventing  removal  to  the  Fed- 
eral court  is  not  a  sufficient  allegation  that  the  joinder  was  fraudu- 
lent. 

A  lessor  raihx)ad  company  remains  responsible,  so  far  as  its  duty  to 
the  pubUc  is  concerned,  notwithstanding  it  may  lease  its  road,  unless 
relieved  by  a  statute  of  the  State. 

Whether  defendants  can  be  sued  jointly  as  tort-feasors  is  for  the 
state  court  to  decide;  and  so  held  that,  where  the  state  court  decides 
that  a  lessor  road  in  that  State  is  responsible  for  keeping  its  road- 
bed in  order,  the  joinder  of  both  lessor  and  lessee  roads  in  a  suit  for 
damages  caused  by  imperfect  roadbed  and  management  is  not 
fraudulent  and  the  lessee  road,  although  non-resident,  cannot 
remove  if  the  lessor  road  is  resident. 

126  Kentucky,  252,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Edmund  F,  Trdbite,  with  whom  Mr.  John  C.  Doolan, 
Mr.  AtHUa  Cox,  Jr,,  and  Mr.  Blewett  Lee  were  on  the  brief, 
for  plaintiff  in  error : 

The  lessor  and  conductor  were  joined  as  petitioner's  co- 


ILLINOIS  CENTRAL  R.  R.  CO.  v,  SHEEGOG.     309 
215  U.  S.  Argument  for  Plaintifif  in  E^rror. 

defendants  solely  to  prevent  a  removal  to  the  Federal  court, 
and  the  trial  court  sustained  their  motions  for  peremptory 
instructions  in  their  favor,  and  plaintiff  below  prosecuted 
no  appeal  from  these  judgments,  but  abandoned  his  case 
as  to  them  both. 

The  allegations  of  fact  in  a  petition  for  removal  must  be 
accepted  by  the  state  court  as  true,  because  an  issue  on  such 
allegations  can  be  tried  only  in  the  Federal  court.  Railway 
V.  Dunn,  122  U.  S.  513,  517;  Plymouth  v.  Amador  Co,,  118 
U.  S.  264,  270;  Louisville  R.  R.  Co.  v.  Wangdin,  132  U.  S. 
599;  Alabama  GL  Southern  Ry,  Co.  v.  Thompson,  200  U.  S. 
218;  Wecker  v.  Naticmal  Co.,  204  U.  S.  176;  Chesapeake  & 
Ohio  Ry.  Co.  v.  McCabe,  213  U.  S.  207;  Dow  v.  Bradstreet, 
46  Fed.  Rep.  824;  Arrowsmith  v.  Railroad  Co.,  57  Fed.  Rep. 
165;  Diday  v.  Railway  Co.,  107  Fed.  Rep.  565;  Union  Co.  v. 
C,  B.  &  Q.  R.  R.  Co.,  119  Fed.  Rep.  209;  Kelly  v.  C.  &  A.  R. 
Co.,  122  Fed.  Rep.  286;  Gustafsm  v.  Railway  Co.,  128  Fed. 
Rep.  85;  Dishcm  v.  C,  N.  0.  &  T.  P.  Ry.  Co.,  133  Fed.  Rep. 
471;  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  Rep.  650,  668 
(certiorari  denied,  198  U.  S.  586) ;  South  Dakota  Co.  v.  Cin. 
&  St.  P.  Ry.  Co.,  141  Fed.  Rep.  578,  581;  Thomas  v.  Great 
North.  Ry.  Co.,  147  Fed.  Rep,  83,  86;  Atlanta,  K.  &  N.  Ry. 
Co.  V.  S(m.  Ry.  Co.,  153  Fed.  Rep.  122,  126;  M'Guire  v.  Great 
North.  Ry.  Co.,  153  Fed.  Rep.  434,  439;  Politz  v.  Wabash 
Ry.  Co.,  153  Fed.  Rep.  941 ;  M'Alister  v.  Ches.  &  Ohio  Ry. 
Co.,  157  Fed.  Rep.  740,  743;  Harrington  v.  Gt.  Nor.  Ry.  Co., 
169  Fed.  Rep.  714;  Donovan  v.  WeUs,  Fargo  &  Co.,  169  Fed. 
Rep.  363. 

The  state  court,  therefore,  had  no  jurisdiction  to  try  or 
determine  the  question  of  fact  tendered  by  the  petition  for 
removal,  much  less  to  try  it  on  evidence  heard  only  on  the 
merits.  Rviherford  v.  /.  C.  R.  R.  Co.,  120  Kentucky,  15; 
Cdey  V.  7.  C.  jB.  R.  Co.,  121  Kentucky,  385;  Dudley  v.  /.  C. 
R.  R.  Co.,  127  Kentucky,  221;  Underwood  v.  I.  C.  R.  R.  Co., 
31  Ky.  L.  R.  595,  holding  that  the  state  court  may  try  issues 
of  fact  upon  a  petition  for  removal,  is  a  doctrine  unsound  in 


310  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  8. 

principle  and  in  conflict  with  the  decisions  of  this  court  and 
all  of  the  other  Federal  courts. 

Where  the  plaintiff  joins  as  the  real  defendant's  co- 
defendants  persons  known  to  be  improper  parties  and  fabri- 
cates averments  concerning  them  in  order  to  misstate  their 
connection  with  the  case,  a  petition  for  removal  in  alleging 
fraud  in  the  joinder  of  the  improper  defendants  may  aver  the 
untruth  of  the  plaintiff's  averments,  otherwise  the  right  of 
removal  to  the  Federal  court  might  always  be  frustrated  by 
the  plaintiff  ad  libitum;  and  the  courts  will  be  astute  to  pre- 
vent such  devices.  Miller,  J.,  4  Dill.  277  (cited  in  57  Fed. 
Rep.  169),  and  see  Crawford  v.  /.  C.  Ry.  Co.,  130  Fed.  Rep. 
395;  C,  R.  L  &  P.  Ry.  Co.  v.  Stepp,  151  Fed.  Rep.  908,  and 
other  cases  cited  supra. 

Although  the  state  court  was  without  jurisdiction  to  try 
an  issue  of  fact  upon  the  petition  for  removal  and  the  assump- 
tion of  the  state  court  to  pass  upon  the  truth  of  the  aver- 
ments of  such  petition  of  itself  entitles  the  Illinois  Central 
to  a  reversal  of  the  judgment  now  assailed,  nevertheless  the 
same  result  would  follow  a  consideration  of  the  case  which 
the  state  court  assumed  to  try  as  arising  upon  the  record, 
because  it  is  demonstrable  from  the  opinion  itself  that  the 
state  court  was  not  justified  in  holding  that  the  derailment 
of  the  engine  was  the  proximate  result  of  the  failure  of  the 
lessor  to  perform  its  public  duty  in  its  failure  to  construct 
safe  roadbed. 

This  unwarrantable  speculation  is  too  far-fetched  to  justify 
the  joinder  of  the  Kentucky  Company  upon  the  assumption 
that  the  supposed  condition  of  its  track  caused  the  wreck 
in  any  such  fantastic  way  as  suggested  by  the  state  court. 
Neeling  v.  C,  St.  P.  &  K.  R.  R.  Co.,  98  Iowa,  554;  Cox  v. 
C.  &  N.  W.  Ry.  Co.,  102  Iowa,  711. 

If  the  state  court  had  had  jurisdiction  to  try  the  truth  of 
the  averments  of  the  petition  for  removal  it  must  have  heard 
witnesses  to  that  end.  Instead  of  so  doing  the  state  court 
tried  the  Illinois  Central's  averments  on  jurisdiction  by  evi- 


ILLINOIS  CENTRAL  R.  R.  CO.  r.  SHEEGOG.     311 
215  U.  S.  Argument  for  Defendant  in  Error. 

dence  upon  the  merits,  and  as  if  it  were  trying  the  liability 
of  the  Kentucky  Company,  which  had  previously  been  dis- 
missed. Its  judgment  is,  therefore,  reversible  from  any 
standpoint. 

Defendant  in  error's  case  against  the  plaintiff  in  error  is 
a  distinct  cause  of  action  on  which  a  separate  suit  might  be 
brought  and  complete  relief  afforded  without  any  other  party 
in  court.    Barney  v.  Latham,  103  U.  S.  205. 

Permission  of  state  practice  to  join  defendants  does  not 
prevent  a  separable  controversy  between  plaintiff  and  one 
of  them.  KeUy  v.  Railroad  Co,,  122  Fed.  Rep.  286,  291; 
WiUiard  v.  Railroad  Co.,  124  Fed.  Rep.  796,  801;  Yates  v. 
Railroad  Co,,  137  Fed.  Rep.  943;  Iowa  Ry,  Co,  v.  Bliss,  144 
Fed.  Rep.  446;  Manufacturing  Co,  v.  Brown,  148  Fed.  Rep. 
308;  Scmth  Dakota  Co,  v.  Railway  Co,,  141  Fed.  Rep.  578, 
581;  Stockton  v.  Oregon  Short  Line,  170  Fed.  Rep.  627,  633; 
WaUin  v.  Reagan,  171  Fed.  Rep.  758,  763. 

State  legislation  cannot  control  Federal  jurisdiction.  Hyde 
V.  Stone,  20  How.  170,  175;  Smyth  v.  Ames,  169  U.  S.  466; 
Brau)  V.  Wabash,  164  U.  S.  271. 

Mr.  John  G.  Miller,  with  whom  Mr,  P.  B,  Miller  was  on  the 
brief,  for  defendant  in  error: 

Case  is  not  removable  until  the  record  on  its  face  shows 
facts  which  give  the  Federal  court  jurisdiction.  Ex  parte 
Wisner,  203  U.  S.  449;  Kinney  v.  Columbia  Sav.  &  Loan  Asso,, 
191  U.  S.  78. 

If  the  case  be  not  removed,  the  jurisdiction  of  the  state 
court  remains  unaffected;  and  under  the  act  of  Congress  the 
jurisdiction  of  the  Federal  court  could  not  attach  until  it 
becomes  the  duty  of  the  state  court  to  proceed  no  further. 
Crehore  v.  M,  &  0,  Ry,  Co,,  131  U.  S.  240;  Stone  v.  South 
Carolina,  117  U.  S.  430;  Carsm  v.  Hyatt,  118  U.  S.  279; 
Stevens  v.  Nichols,  130  U.  S.  230;  Phoenix  Ins,  Co,  v.  Pechner, 
95  U.  S.  183;  National  Steamship  Co,  v.  Tugman,  106  U.  S. 
118;  B,  &  0.  R,  R,  Co,  v.  Koontz,  104  U.  S.  514. 


312  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  Error.  215  XJ.  S. 

The  controversy  must  be  wholly  between  citizens  of  different 
States  in  order  to  remove  the  case,  and  such  is  not  the  case 
when  one  or  more  defendants  jointly  sued  are  citizens  of  the 
same  State  with  plaintiflF.  Core  v.  Vinaly  117  U.  S.  347; 
Chesapeake  v.  Ohio  R.  R.  Co.,  179  U.  S.  131;  Powers  v.  C. 
&  0.  fi.  R.  Co.,  169  U.  S.  92;  Alabama  G.  S.  R.  R.  Co.  v. 
Thompson,  200  U.  S.  206;  C,  N.  0.  &  T.  P.  R.  R.  Co.  v. 
Bohon,  200  U.  S.  221. 

If  the  act  of  an  individual  is  within  the  terms  of  the  law, 
whatever  may  be  the  reasons  which  govern  him,  or  whatever 
may  be  the  result,  it  cannot  be  impeached.  Doyle  v.  Corh 
tinental  Ins.  Co.,  94  U.  S.  535;  Prewitt  v.  Mut.  Life  Ins.  Co., 
115  Kentucky,  26. 

Plaintiff's  motive  in  the  performance  of  a  lawful  act  was  not 
open  to  inquiry.    C.  &  0.  R.  R.  Co.  v.  Dixon,  179  U.  S.  131. 

The  construction  given  to  the  statute  of  the  State  by  the 
highest  tribunal  of  the  State  is  regarded  as  part  of  the  statute 
and  is  binding  upon  the  courts  of  the  United  States  as  a  text. 
Leffingwell  v.  Warren,  2  Black,  599;  Com.  Bank  v.  Bucking- 
ham,  5  How.  317;  Jackson  v.  Lamphire,  3  Pet.  280. 

When  the  highest  judicial  tribunal  of  a  State  has  deter- 
mined the  extent  of  the  powers  and  liabilities  of  corporations 
created  under  its  laws,  the  decision  is  conclusive  on  the 
national  courts  in  all  cases  in  which  no  question  of  general 
or  commercial  law  and  no  question  of  right  under  the  Consti- 
tution of  the  United  States  is  involved.  See  92  Fed.  Rep.  124; 
Claybome  v.  Brooks,  111  U.  S.  400;  Detroit  v.  Osborne,  135 
U.  S.  499;  GUman  v.  ShOxyygan,  2  Black,  510;  L.  &  N.  R.  R. 
Co.  V.  Kentucky,  183  U.  S.  508;  Connell  v.  Utica  E.  R.  R.  Co., 
13  Fed.  Rep.  241 ;  C.  cfe  0.  Ry.  Co.  v.  Dixon,  179  U.  S.  131 ; 
SoiUhem  Ry.  Co.  v.  Carsm,  194  U.  S.  136;  Alabama  G.  S.  R. 
Co.  V.  Thompson,  200  U.  S.  206;  Cin.,  N.  0.  &  T.  P.  R.  R.  Co. 
V.  Bohon,  200  U.  S.  221. 

In  case  of  a  misjoinder,  a  plaintiff's  motive  in  joining  a  party 
as  defendant  can  be  questioned  only  when  by  legislative  act 
or  judicial  decision  it  is  the  settled  law  of  the  State  in  which 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     313 
215  U.  S.  Argm^^Q^  ^^^  Defendant  in  Error. 

the  action  is  brought  that  the  defendant,  alleged  to  be  joined 
as  a  sham  and  a  fraud,  is  not  liable;  and  no  such  question  can 
arise  where  the  law  of  the  State  by  judicial  decision  or  legis- 
lative act  fixes  the  liability  of  such  defendant.  Cases  swpraj 
and  Persm  v.  7.  C.  R.  R.  Co.,  118  Fed.  Rep.  342. 

The  action  for  death  is  regulated  by  the  Kentucky  consti- 
tution and  statute.  Const.  Ky.,  §  241;  Ky.  Stat.,  §  6.  And 
the  liability  of  a  railroad  corporation  that  leases  its  track  is 
regulated  by  the  Kentucky  constitution,  §  203,  which  forbids 
the  shifting  of  that  liability  from  the  lessor  to  the  lessee. 

Independent  of  the  constitutional  provision  the  corpora- 
tion owning  the  road  and  having,  received  a  charter  from  the 
State  is  under  certain  public  duties  that  even  a  duly  au- 
thorized lease  will  not  shift  or  change,  and  the  owner  cannot 
divest  itself  of  those  public  duties.  Brooker  v.  M,  &  B,  S.  R.  R. 
Co.,  119  Kentucky,  137;  McCabe  v.  M.  &  B.  S.  R.  R.  Co.,  112 
Kentucky,  861;  Svnce  v.  M.  &  B.  S.  R.  R.  Co.,  116  Kentucky, 
253;  He/ward  v.  M.  &  B.  S.  R.  R.  Co.,  70  S.  W.  Rep.  631; 
Davis  V.  C.  &  0.  Ry.  Co.,  75  S.  W.  Rep.  227;  dinger  v.  M.  & 
B.  S.  R.  R.  Co.,  109  S.  W.  Rep.  317. 

While  the  lessor  may  not  be  liable  to  the  servant  of  the 
lessee  for  an  injury  caused  by  the  negligent  act  or  omission 
of  the  lessee  as  to  some  duty  growing  out  of  the  mere  relation- 
ship of  master  and  servant,  the  lessor  is  liable  for  an  injury 
to  any  member  of  the  public,  including  the  servant  of  the 
lessee,  who  may  be  injured  by  a  negligent  act  or  omission 
as  to  a  public  duty,  such  as  a  failure  to  keep  its  roadbed  or 
track,  cattle  guards,  fences,  or  station  houses  in  a  reasonably 
safe  condition.  Siuice  v.  M.  A  B.  S.  Ry.  Co.,  116  Kentucky, 
253;  Nugent  v,  Boston  Railroad  Co.,  80  Maine,  62;  Curl  v. 
RaHroad,  28  Kansas,  622;  Arrowsmith  v.  Railroad,  57  Fed. 
Rep.  165;  Lee  v.  S.  P.  R.  R.  Co.,  116  California,  97. 

To  sue  all  three  of  the  defendants  for  damages  resulting 
from  the  negligent  acts  charged  in  the  petition  of  plaintiff, 
is  allowable  under  the  Kentucky  practice,  and  all  were  jointly 
bound  or  liable.    Pugh  v.  C.  &  0.  Ry.  Co.,  101  Kentucky, 


314  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  E2rror.  215  U.  S. 

77;  Rutherford  v.  /.  C.  R.  R.  Co,,  27  Ky.  L.  R.  397;  Jones  v. 
/.  C.  R.  R.  Co.,  26  Ky.  L.  R.  31;  /.  C.  R.  R.  Co.  v.  Coley,  28 
Ky.  L.  R.  336;  Cent.  Pass.  Ry.  Co.  v.  Kuhn,  86  Kentucky, 
578;  Hawkins  v.  Riley,  17  B.  Mon.  101;  C.  &  0.  R.  R.  Co.  v. 
Dixon,  179U.  S.  131. 

Under  the  authorities  supra,  the  construction  given  by 
the  Court  of  Appeals  of  Kentucky  to  §  1 19  of  the  Kentucky 
Civil  Code  is  conclusive;  and  no  act  of  the  legislature  or  au- 
thority for  the  lease  is  set  forth  in  the  petition  for  removal; 
and  that  being  true,  the  lease,  if  such  existed,  is  not  shown 
by  any  allegation  to  have  been  authorized  by  law  and  should, 
therefore,  be  treated  as  void.  Thomas  v.  West  Jersey  R.  R. 
Co.,  101  U.  S.  71;  Railroad  v.  Winans,  17  How.  30. 

Petition  to  remove  after  a  trial  on  the  merits  comes  too 
late.  A  peremptory  instruction  to  find  for  any  of  the  de- 
fendants was  "ruling  on  the  merits  and  not  a  ruling  on  the 
question  of  jurisdiction."  "The  right  to  remove  was  not 
contingent  on  the  aspect  the  case  may  have  assumed  on  the 
facts  developed  on  the  merits  of  the  issues  tried."  Whitcomb 
V.  Smithson,  175  U.  S.  635;  Kansas  City  Suburban  Belt  Ry, 
V.  Herman,  187  U.  S.  63. 

Therefore,  not  only  does  the  petition  of  the  plaintiff  allege 
facts  that  would  constitute  a  joint  cause  of  action  against  all 
of  the  defendants,  as  held  by  the  Court  of  Appeals  of  Ken- 
tucky, but  as  stated  by  the  opinion  of  that  court  in  this  case, 
"the  testimony  showed  without  much  contradiction"  the 
truth  of  plaintiff's  allegations  as  to  the  miserably  defective 
and  dangerous  condition  of  this  track  and  thus  absolutely 
fixed  the  liability  of  both  the  lessee  and  the  lessor  for  the 
death  of  the  plaintiff's  intestate  which  was  caused  thereby, — 
and  the  effort  to  avoid  this  conclusion  by  claiming  the  strik- 
ing of  the  stray  mule  by  the  engine  was  the  proximate  cause, 
only  makes  matters  worse  for  the  corporations,  because  their 
actionable  negligence  in  violating  §  1793,  Kentucky  statute, 
as  to  a  cattle  guard  at  that  place,  caused  the  collision  with 
the  mule. 


ILLINOIS  CENTRAL  R.  R.  CO.  v,  SHEEGOG.    315 

215  U.  S.  Opinion  of  the  Court. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  reverse  a  judgment  rendered  by 
the  Court  of  Appeals  of  Kentucky  in  favor  of  the  defendant 
in  error,  notwithstanding  a  petition  and  bond  for  removal  to 
the  Circuit  Court  of  the  United  States.  /.  C,  Ry.  Co,  v.  Shee- 
gog^s  Admr,,  126  Kentucky,  252. 

The  defendant  in  error  brought  this  action  for  causing  the 
death  of  his  intestate,  John  E.  Sheegog,  by  the  throwing  off 
the  track  of  a  railroad  train  upon  which  the  deceased  was  em- 
ployed as  an  engineer.  The  defendants  were  the  conductor 
of  the  train,  the  Illinois  Central  Railroad  Company,  which 
was  operating  the  railroad  and  owned  the  train,  and  the  Chi- 
cago, St.  Louis  and  New  Orleans  Railroad  Company,  which 
owned  the  road  and  tracks  where  the  accident  happened,  but 
which  had  let  the  same  to  the  first-mentioned  road.  It  was 
alleged  that  through  the  negligence  of  both  companies  the 
roadbed,  track,  etc.,  were  in  an  improper  condition;  that 
through  the  negligence  of  the  Illinois  Central  the  engine  and 
cars  were  in  an  improper  condition;  and  that  the  death  was 
due  to  these  causes  acting  jointly,  the  negligence  of  the  Illinois 
Central  in  permitting  its  engine,  cars  and  road  to  be  operated 
while  in  such  condition,  and  the  negligence  of  the  conductor 
in  ordering  and  directing  the  management  of  the  train. 

In  due  season  the  Illinois  Central  Railroad  Company,  being 
an  Illinois  corporation,  filed  its  petition  to  remove.  The  diffi- 
culty in  its  way  was  that  the  other  two  defendants  were  cit- 
!  izens  and  residents  of  Kentucky,  to  which  State  the  plaintiff 

also  belonged.  To  meet  this  the  petition  alleged  that  the 
plaintiff  had  joined  these  parties  as  defendants  solely  for  the 
i  purpose  of  preventing  the  removal.    It  admitted  the  lease  and 

averred  that  the  Illinois  Central  Company  operated  the  road 
exclusively  and  alone  employed  the  deceased.  It  went  on  to 
allege  that  the  charge  of  joint  negligence  against  the  lessor 
and  lessee  in  causing  the  wreck  as  stated  was  made  only  for 
the  above  purpose  and  was  fraudulent  and  knowingly  false. 


316  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

The  question  is  whether  these  allegations  were  sufficient  to 
entitle  the  petitioner  to  have  its  suit  tried  in  the  Federal 
court.  It  may  be  mentioned  here  that  the  jury  found  for  the 
other  two  defendants  and  against  the  Illinois  Central  Railroad 
Company,  but  that  fact  has  no  bearing  upon  the  case.  Whit- 
comb  V.  Smiihson,  175  U.  S.  635,  637. 

Of  course,  if  it  appears  that  the  joinder  was  fraudulent  as 
alleged,  it  will  not  be  allowed  to  prevent  the  removal.  Wecker 
V.  National  Enameling  &  Stamping  Co.,  204  U.  S.  176.  And 
further,  there  is  no  doubt  that  the  allegations  of  fact,  so  far 
as  material,  in  a  petition  to  remove,  if  controverted,  must  be 
tried  in  the  court  of  the  United  States,  and  therefore  must  be 
taken  to  be  true  when  they  fall  to  be  considered  in  the  state 
courts.  Crehore  v.  Ohio  &  Mississippi  Ry,  Co.,  131  U.  S.  240, 
244.  Chesapeake  &  Ohio  Ry.  Co.  v.  McCabe,  213  U.  S.  207. 
On  the  other  hand,  the  mere  epithet  fraudulent  in  a  petition 
does  not  end  the  matter.  In  the  case  of  a  tort  which  gives  rise 
to  a  joint  and  several  liability  the  plaintiff  has  an  absolute 
right  to  elect,  and  to  sue  the  tort-feasors  jointly  if  he  sees  fit, 
no  matter  what  his  motive,  and  therefore  an  allegation  that 
the  joinder  of  one  of  the  defendants  was  fraudulent,  without 
other  ground  for  the  charge  than  that  its  only  purpose  was 
to  prevent  removal,  would  be  bad  on  its  face.  Alabama 
Great  Southern  Ry.  Co.  v.  Thompson,  200  U.  S.  206.  CincinnaH, 
New  Orleans  &  Texas  Pacific  Ry,  Co,  v.  Bohon,  200  U.  S.  221. 
If  the  legal  effect  of  the  declaration  in  this  case  is  that  the 
Illinois  Central  Railroad  Company  was  guilty  of  certain  acts 
and  omissions  by  reason  of  which  a  joint  liability  was  imposed 
upon  it  and  its  lessor,  the  joinder  could  not  be  fraudulent  in  a 
legal  sense  on  any  ground  except  that  the  charge  against  the 
alleged  immediate  wrongdoer,  the  Illinois  Central  Railroad 
itself,  was  fraudulent  and  false. 

We  assume,  for  the  purposes  of  what  we  have  to  say,  that 
the  allegations  concerning  the  lessor  state  merely  a  conclu- 
sion of  law  from  the  acts  and  omissions  charged  against  its 
lessee.    Or,  if  they  be  taken  to  be  allegations  of  fact,  we  as- 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     317 
215  U.  S.  Opinion  of  the  Court. 

sume,  again  merely  for  the  purposes  of  decision,  that  they  are 
effectively  traversed  by  the  petition  to  remove.  The  Ken- 
tucky Court  of  Appeals  appears  to  us  to  have  discussed  the 
case  on  this  footing.  Whether  it  did  or  not,  the  question 
whether  a  joint  liability  of  lessor  and  lessee  would  arise  from 
the  acts  and  omissions  of  the  Illinois  Central  Railroad  Com- 
pany alone  was  a  question  of  Kentucky  law  for  it  to  decide, 
and  it  appears  to  us  to  have  decided  it. 

We  should  observe  in  the  first  place  that  the  cause  of  ac- 
tion alleged  is  not  helped  but  rather  hindered  by  the  allega- 
tion that  the  deceased  was  an  employ^  of  the  Illinois  Central 
Road.  The  case  did  not  stand  on  the  breach  of  any  duty 
owed  peculiarly  to  employes,  and  on  the  other  hand  was  en- 
cumbered with  the  fact  that  a  part  of  the  negUgence  charged 
was  that  of  a  fellow-servant.  The  plaintiff  recovered  for  a 
breach  of  a  duty  to  the  public  which  at  best  was  not  released 
or  limited  by  his  intestate's  having  been  in  the  company's 
service.  Now  whether  we  agree  with  it  or  not  the  doctrine 
is  familiar  that  in  the  absence  of  statute  a  railroad  company 
cannot  get  rid  of  the  liabilities  attached  to  the  exercise  of  its 
franchise,  by  making  a  lease.  Whatever  may  be  the  law  as 
to  purely  contract  relations,  to  some  extent  at  least  the  du- 
ties of  the  lessor  to  the  public,  including  that  part  of  the  pub- 
he  that  travels  on  the  railroad,  are  held  to  remain  unchanged. 
In  this  case  the  Court  of  Appeals,  after  noting  that  it  does 
not  appear  that  the  lessor  was  reUeved  by  statute,  quotes  an 
earlier  Kentucky  decision  which  seemingly  adopted  the  fol- 
lowing language  of  a  commentator:  "If  it  be  true,  as  the  de- 
cisions with  substantial  unanimity  admit,  that  a  lessor  railway 
remains  liable  for  the  discharge  of  its  duties  to  the  public 
unless  expressly  exempted  therefrom  by  statute,  it  seems 
difficult  to  conceive  its  absence  of  liability  in  any  event,  ex- 
cept perhaps  when  the  plaintiff  is  suing  upon  an  express  con- 
tract made  with  him  by  the  lessee  corporation."  McCabe  v. 
MaysvUle  &  Big  Sandy  R.  R.  Co.,  112  Kentucky,  861,  875. 

The  court,  however,  then  goes  on  to  refer  \o  a  distinction 


318  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

taken  in  a  later  Kentucky  case  between  torts  arising  from 
negligent  operation  and  those  resulting  from  the  omission  of 
such  duties  as  the  proper  construction  and  maintenance  of 
the  road,  Svnce  v.  Maysville  &  Big  Sandy  Ry.  Co.,  116  Ken- 
tucky, 253,  and  quotes,  with  seeming  approval,  decisions  in 
other  States  limiting  the  liability  of  the  lessor  to  the  latter 
class.  But  it  then  proceeds  to  show  that  the  recovery  in  this 
case  is  upon  a  breach  of  a  duty  to  the  public,  and  that  accord- 
ing to  the  declaration  and  the  verdict  the  injury  was  due, 
in  part,  at  least,  to  the  defective  condition  of  the  road.  It 
ends  by  saying  (p.  278):  "The  appellee  not  only  had  reason- 
able grounds  to  believe  that  the  resident  corporation  was  re- 
sponsible to  him,  but  he  had  actual  grounds  to  believe  it." 
We  understand  the  words  'actual  grounds'  to  mean  that 
the  belief  was  correct  on  the  allegations  and  findings  accord- 
ing to  Kentucky  law.  So  that,  whatever  may  be  the  precise 
line  drawn  by  that  court  hereafter,  it  stands  decided  that  in 
Kentucky  the  facts  alleged  and  proved  against  the  Illinois 
Central  Railroad  in  this  case  made  its  lessor  jointly  liable  as 
matter  of  law.    This  decision  we  are  bound  to  respect. 

It  follows,  if  our  interpretation  of  the  decision  is  correct, 
that  no  allegations  were  necessary  concerning  the  Chicago, 
St.  Louis  and  New  Orleans  Railroad  Company,  except  that 
it  owned  and  had  let  the  road  to  its  co-defendant.  The  joint 
liability  arising  from  the  fault  of  the  Illinois  Central  Road 
gave  the  plaintiff  an  absolute  option  to  sue  both  if  he  pre- 
ferred, and  no  motive  could  make  his  choice  a  fraud.  The 
only  way  in  which  fraud  could  be  made  out  would  be  by 
establishing  that  the  allegation  of  a  cause  of  action  against 
the  nUnois  Central  Railroad  was  fraudulent,  or  at  least  any 
part  of  it  for  which  its  lessor  possibly  could  be  held.  But  it 
seems  to  us  that  to  allow  that  to  be  done  on  such  a  petition 
as  is  before  us  would  be  going  too  far  in  an  effort  to  counter- 
act evasions  of  Federal  jurisdiction.  We  have  assumed,  for 
purposes  of  decision,  that  the  railroad  held  on  what  may  be 
called  a  secondary  ground  is  to  be  charged,  if  at  all,  only  as 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     319 
215  U.  S.  Day  and  Harlan,  J  J.,  dissenting. 

a  consequence  of  the  liability  of  its  lessee.  But  when  we  come 
to  the  principal  and  necessary  defendant,  a  man  is  not  to  be 
prevented  from  trying  his  case  before  that  tribunal  that  has 
sole  jurisdiction  if  his  declaration  is  true  by  a  mere  allegation 
that  it  is  fraudulent  and  false.  The  jury  alone  can  determine 
that  issue  unless  something  more  appears  than  a  naked  de- 
nial. Louisville  &  NashviUe  R.  R,  Co.  v.  Wangelin,  132  U.  S. 
599, 603.  Chesapeake  &  Ohio  Ry,  Co,  v.  Dixm,  179  U.  S.  131, 
138.  However,  the  petition  for  removal  hardly  raises  this 
point.  For  it  directs  itself  wholly  against  the  allegations 
of  joint  negligence,  and  does  not  attempt  to  anticipate  the 
trial  on  the  merits  so  far  as  the  conduct  of  the  Illinois  Central 
is  concerned. 

Judgment  affirmed. 

Mr.  Justice  Day,  with  whom  concurred  Mr.  Justice 
Harlan,  dissenting. 

In  my  view  this  decision  departs  from  rulings  recently 
made,  and  tends  to  disturb  settled  principles  essential  to  the 
maintenance  of  jurisdiction  in  the  Federal  courts.  In  order 
to  apply  my  views  I  will  briefly  restate  the  facts  of  the  case. 

Sheegog's  administrator  brought  an  action  in  the  state 
court  of  Kentucky  against  the  Illinois  Central  Railroad  Com- 
pany, a  corporation  of  the  State  of  Illinois,  the  Chicago,  St. 
Louis  and  New  Orleans  Railroad  Company,  a  corporation  of 
the  State  of  Kentucky,  and  F.  J.  Durbin,  a  citizen  of  Ken- 
tucky. The  Illinois  Central  Railroad  Company  was  the  lessee 
of  the  Chicago,  St.  Louis  and  New  Orleans  Railroad  Company, 
and  F.  J.  Durbin  was  alleged  to  be  a  conductor  in  the  employ 
of  the  lessee  road  and  in  charge  of  the  train,  in  the  operation 
of  which,  as  engineer,  plaintiff's  intestate  was  killed.  The 
charge  of  the  complaint  was  that  at  the  time  of  injury  the 
defendant,  the  Chicago,  St.  Louis  and  New  Orleans  Railroad 
Company,  was  the  owner  of  the  roadbed,  right  of  way,  etc., 
and  the  Illinois  Central  Railroad  Company  was  the  lessee  of 


320  OCTOBER  TERM,  1909. 

Day  and  Harlan,  JJ.,  diasentizig.  215  U.  S. 

the  railroad  property,  and  the  owners  of  the  cars,  engines, 
trains  and  appliances,  in  the  operation  of  which  the  intestate 
was  killed;  that  the  defendant  Durbin  was  the  conductor  in 
the  employ  of  the  Illinois  Central  Railroad  Company,  operat- 
ing the  train  at  the  time  of  the  injury.  The  negligence  charged 
against  the  defendant  railroad  companies  was  that  the  road- 
bed, rails,  track,  cattle  guards,  ties,  fences  and  right  of  way 
of  the  railroad  was  allowed  to  be,  and  for  a  long  tinie  had 
been,  in  a  weak,  rotten,  ruinous  and  defective  condition ;  and, 
in  addition  thereto,  as  to  the  Illinois  Central  Railroad  Com- 
pany, its  cars  and  engines  were  knowingly  allowed  to  be  and 
remain  in  an  improper,  defective  and  dangerous  condition, 
and  were  improperly  constructed,  whereby  the  injury  was 
caused,  and  that  the  defendant  Durbin  was  guilty  of  negli- 
gence in  running,  ordering  and  directing  the  train,  and  con- 
tributed to  the  injury  thereby.  And  as  a  conclusion  the  plain- 
tiff charged  the  negligence  of  the  railroad  companies,  as  above 
described,  in  the  maintenance  of  the  track,  roadbed,  cattle 
guards,  etc.,  together  with  the  negligence  of  the  Illinois  Cen- 
tral Railroad  Company  in  directing  and  permitting  its  cars, 
engines  and  road  to  be  operated  while  in  a  dangerous  and 
defective  condition,  and  the  negligence  of  the  conductor  in 
directing  the  running  and  management  of  the  train,  "all  to- 
gether jointly  caused  said  wreck,  and  killed  the  plaintifif's 
intestate." 

Within  the  time  allowed  by  law  the  Illinois  Central  Rail- 
road Company,  the  present  plaintiff  in  error,  appeared  and 
filed  its  petition  for  removal  to  the  Federal  court.  As  the 
suflBciency  of  this  petition  to  make  a  cause  for  removal  is  the 
ultimate  question  in  the  case  it  is  necessary  to  set  out  its 
allegations  somewhat  in  detail: 

"  Your  petitioner  says  that  plaintiff's  decedent  at  the  time 
he  received  the  fatal  injury  complained  of  was  an  employ^ 
of  your  petitioner,  and  not  an  employ^  of  either  of  your  peti- 
tioner's co-defendants,  and  was  not  and  never  had  been  an 
employ^  or  in  the  employ  of  said  lessor,  or  said  F.  J.  Durbin, 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     321 
215  U.  S.  Day  and  Harlan,  JJ.,  dissenting. 

and  that  all  the  said  facts  were  well  known  to  plaintiff  when 
this  action  was  brought.  Your  petitioner  says  that  to  avoid 
such  removal  to  the  Federal  court  of  this  action  plaintiff 
joined  your  petitioner's  co-defendants,  one  a  Kentucky  cor- 
poration and  the  other  a  citizen  of  Kentucky,  and  falsely  and 
fraudulently  alleged  in  its  petition  that  the  train  on  which 
decedent  was  engaged  was,  through  joint  and  gross  negligence 
and  carelessness  of  all  the  defendants,  derailed,  and  said 
decedent  instantly  killed,  and  falsely  and  fraudulently  alleged 
that  by  the  negligence  of  both  defendants'  roadbed,  rails, 
track,  cattle  guards,  fences  and  right-of-way  of  the  said  rail- 
road was  allowed  to  be,  and  for  a  long  time  had  been,  in  a 
weak,  rotten,  ruinous,  defective  and  improper  condition,  and 
by  the  negligence  of  your  petitioner  its  engine  and- cars  were 
knowingly  allowed  to  remain  in  an  improper  and  defective 
and  dangerous  condition,  and  said  engine  and  cars  to  be  so 
constructed  as  to  be  in  a  dangerous  condition,  and  that  this 
improper  and  dangerous  condition  of  the  road  premises  and 
cars  of  the  defendants  was  known  to  the  defendants,  and 
that  at  the  time  of  the  wreck  and  accident  the  same  were  be- 
ing operated  in  a  careless  manner  by  all  the  defendants,  and 
the  defendant  Durbin,  by  his  negligence  in  running,  ordering 
and  directing  said  train  contributed  to  cause  said  accident, 
and  that  the  negligence  of  the  defendant  in  its  maintenance 
of  its  track,  roadbed,  engine,  cattle  guards,  rails,  ties,  fences, 
etc.,  as  set  out  above,  together  with  the  negligence  of  your 
petitioner  in  directing  and  permitting  its  engine  cars  and 
roadbed  to  be  operated  while  in  a  defective  and  dangerous 
condition,  and  the  negligence  of  said  Durbin  in  ordering  and 
directing  the  running  and  management  of  said  train,  and  in 
failing  to  give  proper  directions,  altogether  caused  said  wreck, 
and  killed  said  dcJcedent,  when  the  plaintiff  well  knew  that 
such  allegations  were  untrue,  and  plaintiff  did  not  expect  to 
establish  said  allegations,  and  did  not  make  them  for  the  pur- 
pose of  proving  them  at  the  trial,  or  of  substantiating  his 
cause  of  action  therewith,  but  made  them  solely  for  the  pur- 
VOL.  ccxv — 21 


322  OCTOBER  TERM,  1909. 

Day  and  Harlan,  J  J.,  dissenting.  215  U.  8. 

pose  of  attempting  to  set  up  a  joint  cause  of  action  against  the 
three  defendants  in  order  to  make  a  case  which  would  not  be 
removable  to  the  Federal  court." 

The  state  court  overruled  this  motion  to  remove,  and  its 
action  was  affirmed  by  the  Court  of  Appeals  of  Kentucky. 
/.  C.  Ry.  Co.  V.  Sheegog's  Admr,,  126  Kentucky,  252. 

In  the  court  below  a  peremptory  instruction  was  given 
the  jury  to  find  in  favor  of  the  Kentucky  corporation  and 
the  individual  defendant.  Notwithstanding  this  fact  the 
Court  of  Appeals  of  Kentucky  applied  a  rule  which  it  had  laid 
down  in  former  decisions,  and  held  that  the  facts  developed 
on  the  trial  had  shown  that  the  administrator  had  reasonable 
grounds  to  join  the  local  defendants,  and  was  therefore  justi- 
fied in  overruling  the  motion  to  remove.  In  other  words, 
while  the  opinion  seems  to  recognize  that  if  the  allegations 
of  the  petition  for  removal  were  true  a  fraudulent  joinder  was 
shown,  nev(»rtheless  the  proof  upon  the  merits  showed  that 
the  joinder  was  proper. 

The  ground  upon  which  the  Kentucky  Court  of  Appeals 
held  the  Kentucky  railroad  jointly  liable  with  the  Illinois 
Central  for  the  injuries  sustained  is  not  very  clear,  in  view  of 
the  fact  that  the  opinion  in  some  parts  of  it  seems  to  make 
the  liability  depend  upon  the  failure  to  construct  a  proper 
road  and  in  other  parts  seems  to  rest  the  responsibility  upon 
the  continuing  duty  of  the  lessor  railroad  company  to  furnish 
and  maintain  a  safe  roadbed  in  order  to  discharge  the  duties 
which  it  had  undertaken  by  accepting  the  franchise  which  the 
State  had  conferred  upon  it.  In  the  case  to  which  the  court 
makes  reference,  Nugent  v.  Boston,  C.  &  M,  R.  Co,,  80  Maine, 
62,  where  a  brakeman  was  injured  by  reason  of  the  negligent 
construction  of  an  awning  of  a  station  house  of  the  defendant 
company,  near  the  track,  the  liability  of  the  lessor  company 
was  rested  both  upon  the  ground  of  the  continuing  duty  to 
the  public  and  because  of  the  application  of  the  principle 
which  makes  a  lessor  liable  for  a  defective  construction  of  the 
subject-matter  of  the  lease.     In  either  view  it  is  perfectly 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     323 

215  U.  S.  Day  and  Harlan,  JJ.,  dissenting. 

apparent  that  the  liability  of  the  Illinois  Central  to  its  em- 
ployes, and  that  of  the  lessor  company  to  the  public,  rests 
upon  entirely  different  principles.  In  the  case  of  the  latter  the 
liability  is  because  of  the  duty  which,  it  is  held,  the  lessor  owes 
t.)  the  public;  and  in  the  former,  because  of  the  obligations  of 
the  employer  to  his  employ^  arising  from  the  relation  of  master 
and  servant.  In  this  connection  the  Court  of  Appeals  of  Ken- 
tucky, 126  Kentucky,  in  the  opinion  in  this  case,  said  (p.  275) : 

"In  all  cases  where  a  valid  lease  is  found  (or,  as  in  this 
discussion  where  it  is  assumed),  the  lessor  company  owes  no 
duty  whatsoever  as  an  employer  to  the  operatives  of  the 
lessee  company.  The  claim  of  relationship  of  employer 
and  employ^  under  such  circumstances  is  a  false  claim  and 
quantity.  It  does  not  exist.  The  responsibility  of  the  lessor 
company,  when  it  attaches,  does  not  spring  from  this  rela- 
tionship, but  arises  from  a  failure  of  the  lessor  company  to 
perform  its  duty  to  the  public,  of  which  public  the  employ^ 
of  the  operating  company  may  be  regarded  as  one.  Thus,  in 
those  cases  where  the  injury  has  resulted  to  an  employ^  of 
the  operating  company  by  reason  of  the  negligence  of  a  fellow 
servant,  or  of  want  of  care  of  the  lessee  company  in  manag- 
ing the  road,  or  in  negligence  in  furnishing  suitable  appliances, 
these  and  kindred  matters  being  entirely  and  exclusively 
within  the  control  of  the  lessee  company  for  injury  which  may 
result,  the  lessor  is  in  no  way  responsible.  But  where  injury 
has  resulted  to  an  employ^  of  the  operating  company  by 
reason  of  a  failure  of  the  lessor  to  perform  its  public  duty,  as 
in  the  failure  to  construct  a  safe  road,  as  is  here  charged,  the 
injured  employ^  may  sue  the  lessor  company,  as  one  of  the 
public,  for  its  failure  to  perform  that  duty,  and  not  because, 
between  himself  and  the  lessor  company,  the  relation  of  em- 
ploy6  and  employer,  or  any  relation  of  contractual  privity, 
exists." 

After  citing  the  case  from  80  Maine,  supra,  the  court  adds 
(p.  277): 

"This  case  is  very  similar  to  the  one  at  bar,  in  which  it  was 


324  OCTOBER  TERM,  1909. 

Day  and  Harlan,  JJ.,  dissenting.  215  U.  S. 

alleged  and  proved  that  the  intestate's  death  was  the  proxi- 
mate result  of  the  failure  of  the  lessor  to  perform  its  public 
duty  in  its  failure  to  construct  a  safe  roadbed." 

It  is  apparent  that  the  liability  of  the  two  railroad  com- 
panies, although  both  might  be  liable  for  a  defective  roadbed, 
track,  etc.,  sprang  from  a  different  relation,  and  was  con- 
trolled by  different  principles.  The  liability  to  the  plaintiff's 
intestate,  of  the  Kentucky  corporation,  was  to  him  as  one  of 
the  public,  that  of  the  Illinois  corporation  arose  from  the  rela- 
tion of  master  and  servant,  and  the  duties  thereby  imposed 
upon  the  employer. 

But  let  it  be  conceded  that  a  proper  construction  of  the 
opinion  of  the  Kentucky  Court  of  Appeals  holds  both  the 
railroad  companies,  although  upon  different  relations  to  the 
plaintiff's  intestate,  liable  for  a  defective  roadbed,  it  is  none 
the  less  true  that  the  Illinois  Central  Railroad  Company  had 
a  right  of  removal  to  the  Federal  jurisdiction,  in  which  to 
test  its  liability,  unless  it  was  properly  joined  with  the  other 
defendants  in.  an  action  brought  in  good  faith  in  the  state 
court. 

It  is  the  result  of  the  decisions  of  this  court,  as  I  under- 
stand them,  that  if  the  facts  which  asserted  a  joint  liability 
with  the  local  defendant  are  shown  by  proper  petition  for 
removal,  and  proof  if  necessary,  to  have  been  made  for  the 
purpose  of  defeating  the  jurisdiction  of  the  Federal  court, 
the  right  of  removal  still  exists  in  favor  of  the  non-resident 
company.  This  court  has  had  occasion  to  consider  this  sub- 
ject in  a  number  of  recent  cases.  Before  taking  them  up  we 
may  state  certain  principles  applicable  to  the  law  of  removals 
under  the  removal  act  which  are  so  well  settled  as  scarcely 
to  need  the  citation  of  authorities. 

When  the  petition  for  removal  is  filed  in  the  state  court, 
accompanied  by  the  proper  bond,  a  question  of  law  as  to  the 
sufficiency  of  the  petition  for  removal  only  is  presented  to 
that  court.  Steamship  Co.  v.  Tugman^  106  U.  S.  118;  Stone 
V.  Sauih  Carolina,  117  V.  S.  430;  Carson  v.  HyaJtt,  118  U.  S. 


ILLINOIS  CENTRAL  R.  R.  CO.  v,  SHEEGOG.     325 
215  U.  S.  Day  and  Hablan,  JJ.,  dissenting. 

279;  Burlington^  Cedar  Rapids  &  Northern  R.  R.  Co,  v.  Dunn, 
122  U.  S.  513;  Crehore  v.  Ohio  &  Mississippi  Ry.  Co.,  131  U.  S. 
240;  Traction  Company  v.  Mining  Co,,  196  U.  S.  239. 

It  is  equally  well  settled,  and  is  a  result  of  the  principle 
just  stated,  that  where  the  right  of  removal  arises  because  of 
certain  facts  averred  in  the  petition,  that  issue  cannot  be 
tried  in  the  state  court,  but  must  be  heard  in  the  Federal 
court,  which  alone  has  jurisdiction  to  determine  such  issues 
of  fact.  Carson  v.  Dunham,  121  U.  S.  421;  Burlington,  Cedar 
Rapids  &  Northern  R,  R.  Co.  v.  Dunn,  122  U.  S.  513;  Crehore 
V.  Ohio  &  Miss.  Ry.  Co.,  131  U.  S.  240;  Kansas  City  Railroad 
V.  Daughiry,  138  U.  S.  298;  Traction  Company  v.  Mining  Co., 
196  U.  S.  239. 

In  recent  cases  in  this  court  the  former  adjudications  have 
been  reviewed  and  followed,  and  it  has  been  held  that  for  the 
purposes  of  removal  the  cause  of  action  must  be  regarded  as 
joint  or  several,  accordingly  as  the  plaintifif  has  averred  the 
same  to  be  in  his  complaint,  in  the  absence  of  inferences  aris- 
ing from  the  pleading  or  shown  extrinsically  upon  a  petition 
for  removal,  which  warrant  the  conclusion  that  a  fraudulent 
joinder  has  been  made  for  the  purpose  of  avoiding  the  jims- 
diction  of  the  Federal  court.  Chesapeake  &  Ohio  Ry.  Co,  v. 
Dixon,  179  U.  S.  131;  Alabama  Great  Southern  Ry.  Co.  v. 
Thompson,  200  U.  S.  206;  Cincinnati,  New  Orleans  &  Texas 
Pacific  Ry.  Co.  v.  Bohon,  200  U.  S.  221.  In  the  Alabama 
Great  Southern  Ry.  Case,  200  U.  S.  206,  certain  employes, 
citizens  of  Tennessee,  had  been  joined  with  the  Alabama  and 
Great  Southern  Railroad  Company  in  an  action  for  negligence, 
and  the  question  of  the  right  to  join  them  was  certified  to 
this  court,  and  it  was  held,  after  reviewing  the  former  cases, 
that,  in  the  absence  of  fraudulent  joinder,  the  cause  of  action 
might  be  regarded  for  the  purposes  of  removal  to  be  that 
which  the  plaintifif  had  averred  it  to  be. 

In  the  Bohon  Case,  200  U.  S.  221,  considered  with  the  Ala- 
hama  Great  Southern  case,  supra,  the  action  was  brought 
against  the  railroad  company  and  one  Milligan,  an  engineer 


326  OCTOBER  TERM,  1909. 

Day  and  Hablan,  JJ.,  dissenting.  215  U.  S. 

in  charge  of  an  engine,  the  negUgent  operation  of  which,  it 
was  alleged,  resulted  in  the  death  of  the  plaintiff's  intestate. 
It  appeared  that  the  joinder  was  permitted  by  the  laws  of 
Kentucky,  and  it  was  held  in  this  court  that,  in  the  absence 
of  a  showing  of  fraudulent  joinder,  the  case  was  not  a  remov- 
able one.  An  examination  of  the  petition  for  removal  in  that 
case  shows  that  while  there  were  allegations  that  the  joinder 
was  fraudulent,  that  conclusion  was  averred  to  arise  because 
there  was  no  joint  liability  of  the  railroad  company  and  the 
employ 4;  that  he  was  joined  because  he  was  a  resident  of  Ken- 
tucky for  the  purpose  of  preventing  removal.  But  there  is 
no  averment  in  the  petition  for  removal  in  the  Bohon  case  as 
there  is  in  this  case — that  the  allegations  of  fact  upon  which 
the  complaint  was  based  were  untrue,  made  without  any 
expectation  of  proving  them,  and  for  the  purpose  of  defeat- 
ing a  removal  to  the  Federal  court.  In  concluding  the  dis- 
cussion in  the  opinion  in  the  Bohon  case  it  was  said  (p.  226) : 

"A  State  has  an  unquestionable  right  by  its  constitution 
and  laws  to  regulate  actions  for  negligence,  and  where  it  has 
provided  that  the  plaintiff  in  such  cases  may  proceed  jointly 
and  severally  against  those  liable  for  the  injury,  and  the  plain- 
tiff in  due  course  of  law  and  in  good  faith  has  filed  a  petition 
electing  to  sue  for  a  joint  recovery  given  by  the  laws  of  the 
State,  we  know  of  nothing  in  the  Federal  removal  statute 
which  will  convert  such  action  into  a  separable  controversy 
for  the  purpose  of  removal,  because  of  the  presence  of  a  non- 
resident defendant  therein  properly  joined  in  the  action  under 
the  constitution  and  laws  of  the  State  wherein  it  is  conduct- 
ing its  operations  and  is  duly  served  with  process." 

In  Wecker  v.  Enameling  &  Stamping  Company,  204  U.  S. 
176,  suit  was  brought  in  the  state  court  in  Missouri  by  Wecker 
against  the  Enameling  and  Stamping  Company,  Harry 
Schenck  and  George  Wettengel.  Wettengel  was  a  citizen  of 
the  State  of  Missouri,  the  enameling  company  was  a  foreign 
corporation.  The  complainant  charged  that  the  plaintiff 
was  employed  by  the  company  in  working  about  certain  pots 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.    327 
215  U.  S.  Day  and  Harlan,  JJ.,  dissenting. 

used  in  the  melting  of  grease  and  lubricant  matter,  which 
matter  was  delivered  to  the  plaintifif  in  barrels  of  great  weight, 
and  which  it  was  the  plaintiff's  duty  to  hoist  to  the  top  of 
the  furnace  and  into  the  pots  for  melting.  The  negligence 
charged  against  the  corporation  consisted  in  allowing  the  pots 
to  remain  open  and  exposed  while  filled  with  hot  and  boiling 
lubricants,  without  covering,  railing  or  device  or  means  of 
any  character  to  protect  the  plaintifif  from  slipping  or  falling 
therein,  and  negligently  failing  to  provide  safe  and  sufficient 
hoisting  apparatus  for  the  use  of  the  plaintifif  in  his  employ- 
ment, and  failing  to  instruct  him  in  his  duties,  whereby  and 
because  of  the  negligence  charged  the  plaintifif  lost  his  balance 
and  fell  into  one  of  the  unguarded  and  open  pots,  receiving 
thereby  great  and  painful  injuries.  Wettengel,  it  was  charged, 
was  employed  by  the  corporation,  and  charged  with  the 
superintendence  and  oversight  of  the  plaintifif  in  the  per- 
formance of  his  duties,  and  with  the  duty  of  superintending 
and  planning  the  construction  of  the  furnace,  and  providing 
for  the  pots  a  reasonably  safe  and  suitable  covering,  and  suf- 
ficiently safe  hoisting  apparatus,  and  with  the  duty  of  instruct- 
ing the  plaintifif  as  to  the  manner  of  performing  his  duties. 
The  complaint  charges  the  negligence  of  Wettengel  in  plan- 
ning and  directing  the  construction  of  the  furnace  structure 
and  in  providing  suitable  coverings  and  railings,  and  in  pro- 
viding and  placing  reasonably  safe  and  sufficient  hoisting  ap- 
paratus, and  in  giving  instructions  as  to  the  manner  of  per- 
forming the  plaintifif's  duties,  and  therefore  charges  that  the 
negligence  of  the  corporation  and  Wettengel,  jointly,  caused 
the  injury,  and  prayed  for  a  joint  judgment  against  them. 

In  its  petition  for  removal  the  non-resident  corporation 
charged  that  Wettengel  was  not,  at  the  time  of  the  accident 
and  prior  thereto,  charged  with  the  superintendence  and 
oversight  of  the  plaintifif,  or  with  the  duties  of  planning  or 
directing  the  construction  of  the  furnace,  or  providing  a 
reasonably  safe  and  suitable  furnace  and  pots  and  railings  or 
other  device  to  protect  the  plaintifif,  and  was  not  charged 


328  OCTOBER  TERM,  1909. 

Day  and  Harlan,  JJ.,  dissenting.  215  U.  S. 

with  the  duty  of  placing  reasonably  safe  and  sufficient  hoist- 
ing apparatus,  nor  with  the  duty  of  instructing  the  plaintiff 
in  resj)ect  to  his  duties;  that  Schenck  was  a  non-resident  of 
Missouri,  and  that  Wettengel  had  been  improperly  and  fraud- 
ulently joined  as  a  defendant  for  the  purpose  of  fraudulently 
and  improperly  preventing,  or  attempting  to  prevent,  the  de- 
fendant from  removing  the  cause  to  the  United  States  Circuit 
C!ourt,  and  that  plaintiff  well  knew  at  the  beginning  of  the 
suit  that  Wettengel  was  not  charged  with  the  duties  afore- 
said, and  joined  him  as  a  defendant  to  prevent  the  removal 
of  the  case,  and  not  in  good  faith.  Defendant  offered  affi- 
davits tending  to  show  that  Wettengel  was  employed  in  the 
office  as  a  draftsman ;  that  he  had  nothing  to  do  with  the  se- 
lecting of  plans  or  approving  the  same;  that  he  had  no  au- 
thority to  superintend  the  work  or  to  give  instructions  to  any 
of  the  men  as  to  the  manner  in  which  they  should  perform  the 
work;  that  he  was  merely  a  subordinate  in  the  employ  of  the 
company,  whose  sole  duties  were  to  attend  to  the  mechanical 
work  of  drafting,  to  make  the  necessary  drawings  for  the  use 
of  the  mechanics,  and  he  had  nothing  to  do  with  the  provid- 
ing of  the  pots,  railings,  etc.,  or  the  hoisting  apparatus;  that 
his  position  was  merely  clerical,  and  confined  to  the  making 
of  drawings  to  enable  mechanics  to  construct  work  from 
plans  furnished  by  others  in  the  employ  of  the  defendant. 
Upon  these  affidavits  the  Circuit  Court  reached  the  conclu- 
sion that  the  attempt  to  join  Wettengel  was  not  made  in  good 
faith;  that  the  allegations  as  to  him  were  fraudulent  and 
fictitious,  for  the  purpose  of  preventing  a  removal  to  the 
Federal  court. 

This  court  dechned  to  consider  the  question  as  to  whether, 
as  a  matter  of  law,  the  cause  of  action  was  joint  or  several, 
or  whether,  upon  the  allegations  of  the  complaint,  Wettengel 
could  be  held  jointly  with  the  corporation,  (204  U.  S.  183), 
and  affirmed  the  judgment  of  the  court  below  upon  its  find- 
ings of  fact  upon  the  issue  of  fraudulent  joinder. 

This  case,  therefore,  held  the  doctrine  of  this  court  to  be 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     329 
215  U.  S.  Day  and  Harlan,  JJ.  dissenting. 

that  the  Circuit  Court  of  the  United  States  upon  a  proper 
j)etition  for  removal  may  examine  into  the  merits  sufficiently 
to  determine  whether  the  allegations,  by  reason  of  which  a 
non-resident  defendant  may  be  sued  in  a  state  court,  are 
fraudulently  and  fictitiously  made  for  the  purpose  of  prevent- 
ing removal.  It  is  true  that  where  one  has  a  cause  of  action 
of  which  both  state  and  Federal  courts  have  jurisdiction  his 
motive  in  bringing  the  action  in  the  one  jurisdiction  or  the 
other  is  inunaterial,  and  he  may  sue  in  the  state  court  because 
he  preferred  that  jurisdiction  to  a  Federal  court  to  which  he 
had  an  equal  right  to  go. 

But  this  case  presents  a  very  different  question.  The  in- 
quiry here  is  not  whether  a  cause  of  action  exists  which  may 
be  prosecuted  in  either  court,  but  whether  the  allegations  of 
the  complaint,  which  give  the  right  to  a  joint  action  in  the 
state  court,  are  falsely  and  fictitiously  made  without  the  in- 
tention of  proving  them,  and  with  the  sole  purpose  of  avoid- 
ing Federal  jurisdiction.  Since  its  decision  the  case  of  Wecker 
V.  The  Enameling  &  Stamping  Company  has  been  frequently 
cited  and  followed  in  the  Federal  courts.  McGuire  v.  Great 
Northern  Ry.  Co.,  153  Fed.  Rep.  434;  Donovan  v.  Wells,  Fargo 
&  Co.,  169  Fed.  Rep.  363;  Lockard  v.  St.  Louis  &  S.  F. 
R.  Co.,  167  Fed.  Rep.  675;  People's  U.  S.  Bank  v.  Goodwin, 
160  Fed.  Rep.  727;  McAlister  v.  Chesapeake  &  Ohio  Ry.  Co., 
157  Fed.  Rep.  740. 

Applying  these  principles  to  the  case  at  bar,  the  allega- 
tions of  the  complaint  filed  in  the  state  court  undertook  to 
make  a  cause  of  action  against  the  Illinois  Central  Company, 
the  non-resident  corporation,  upon  three  grounds:  First, 
because  it  was  jointly  liable  with  the  Chicago,  St.  Louis  and 
New  Orleans  Railroad  Company,  the  local  corporation,  for 
a  defective  roadbed;  second,  because  it  was  liable  for  the 
negligent  conduct  of  the  conductor,  Durbin,  in  running  its 
trains;  third,  because  it  was  liable  for  the  negligent  and  im- 
proper construction  of  its  locomotive  and  cars.  As  to  the 
third  ground  of  the  complaint,  the  defective  locomotive  and 


330  OCTOBER  TERM,  1909. 

Day  and  Harlan,  JJ,  dissenting.  215  U.  S. 

cars,  the  authorities  agree  that  there  is  no  responsibility  upon 
the  part  of  the  lessor  company.  The  policy  of  the  law  as 
ruled  by  the  Kentucky  Court  of  Appeals  made  the  lessor 
corporation  responsible  for  a  defective  roadbed,  it  was  not 
responsible  for  defective  appUances  supplied  by  the  lessee 
company  or  for  negligence  in  the  running  and  management 
of  the  road.  This  was  expressly  held  by  the  Kentucky  Court 
of  Appeals  in  Swice^s  Administratrix  v.  MaysviUe  &  Big 
Sandy  Ry.  Co,,  116  Kentucky,  253,  prior  to  its  decision  in  the 
case  at  bar.  Therefore,  as  to  this  ground  of  coixiplaint  there 
was  no  contributing  neglect  of  the  local  company  or  the  con- 
ductor, Durbin. 

If  the  allegations  which  gave  a  right  to  join  these  defend- 
ants were  false  and  fictitious,  such  joinder  should  not  be  al- 
lowed to  defeat  the  right  of  the  foreign  corporation  to  avail 
itself  of  the  Federal  jurisdiction.  As  we  had  occasion  to  say 
in  the  Wecker  case,  the  courts  of  the  United  States  should  not 
interfere  with  the  jurisdiction  of  the  state  courts  in  cases 
properly  within  the  same,  and  the  Federal  courts  should  be 
equally  vigilant  to  defeat  all  fraudulent  devices  or  attempts 
to  avoid  the  jurisdiction  of  the  Federal  courts.  If  the  alle- 
gations of  the  petition  for  removal  were  true  the  statements 
of  the  complaint  as  to  the  negligence  of  Durbin  and  the  local 
corporation  were  false  and  fraudulent,  and  made  without  the 
intention  of  proving  the  same,  and  for  the  purpose  of  pre- 
venting removal. 

The  sole  jurisdiction  to  inquire  into  the  truth  of  these  al- 
legations was  in  the  Federal  court,  and  while  it  would  require 
a  clear  and  strong  case  to  make  out  such  allegations  of  fraud- 
ulent joinder,  jurisdiction  to  make  just  such  an  inquiry  is 
vested  by  law,  under  the  removal  act,  in  the  Federal  courts. 
It  may  be  that  the  allegations  for  removal  might  have  been 
more  specific,  but  they  were  sufficient  to  enable  the  Federal 
court  to  enter  into  an  inquiry  as  to  the  fraudulent  character 
of  the  joinder  of  the  resident  defendants.  It  might  find, 
upon  investigation,  that  the  allegations  as  to  the  condition 


GRAVES  V.  ASHBURN.  331 

215  U.  S.  Syllabus. 

of  the  roadbed  and  the  negligence  of  the  conductor  were  so 
entirely  without  foundation  as  to  warrant  the  conclusion  that 
the  local  corporation  and  the  conductor  were  fraudulently 
joined  to  avoid  the  Federal  jurisdiction.  Indeed,  it  is  to  be 
noted  in  this  connection  that  at  the  close  of  the  evidence 
the  trial  court  directed  a  verdict  in  favor  of  the  local  corpora- 
tion and  the  conductor.  It  is  true  that  the  right  to  remove 
depends  upon  the  allegations  of  the  petition,  but  the  course 
of  the  case  in  the  state  court  is  an  illustration  of  the  possible 
result  of  an  investigation  of  the  truth  of  the  allegations  of 
the  petition  for  removal. 

I  therefore  reach  the  conclusion  that,  upon  the  face  of  the 
petition  for  removal,  there  were  allegations  which  ended  the 
jurisdiction  of  the  state  court,  and  a  sufficient  statement  of 
facts  to  enable  the  Federal  court  to  investigate  the  truthful- 
ness thereof  with  a  view  to  determine  whether  they  were  so 
false  and  fictitious  as  to  show  that  they  were  made  with  a 
view  to  prevent  the  removal  to  the  United  States  court. 

In  my  opinion  the  judgment  of  the  Court  of  Appeals  of 
Kentucky  should  be  reversed. 

Mr.  Justice  Harlan  concurs  in  this  dissent. 


••• 


GRAVES  V.  ASHBURN. 

CERTIORARI  TO  THE  CIRCUrT  COURT  OP  APPEALS  FOR  THE 

FIFTH  CIRCUIT. 

No.  51.    Argued  December  7,  1909.— Decided  December  20,  1909. 

Where  the  remedy  at  law  is  of  doubtful  adequacy  and  the  policy  of 
the  State  is  clearly  indicated  for  the  protection  of  an  important 
industry,  equity  may  interfere,  although  under  different  circum- 
stances an  injunction  might  be  denied;  and  so  held  as  to  an  injunc- 
tion against  cutting  or  boxing  timber  on  pine  lands  in  Georgia. 

Possession  of  imenclosed  woodland  in  natural  condition  is  a  fiction 


332  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

of  law  rather  than  a  possible  fact,  and  can  reasonably  be  assumed 
to  follow  the  title;  and,  in  this  case,  held  that  a  suit  in  equity  could 
be  maintained  to  remove  cloud  on  title  and  cancel  a  fraudulent 
deed  of  timber  lands  in  Georgia  notwithstanding  there  was  no 
allegation  of  possession. 

A  suit  in  equity  may  be  maintained  to  cancel  a  deed  improperly  given 
where  the  invalidity  does  not  appear  on  its  face,  and  under  which 
by  the  state  law,  as  in  Georgia,  possession  might  give  a  title. 

The  fact  that  the  defendant  has,  during  the  pendency  of  an  equity 
action  to  set  aside  a  deed,  continued  to  waste  the  property  does  not 
destroy  the  jurisdiction  of  the  court;  the  bill  may  be  retained  and 
damages  assessed. 

The  objection  of  multifariousness  is  one  of  inconvenience,  and,  after 
trial,  where  the  objection  was  not  sustained  by  the  lower  court 
and  defendants  did  not  stand  upon  their  demurrer  setting  it  up, 
it  will  not  prevail  in  this  court  in  a  case  where  the  bill  charged  -a 
conspiracy  between  several  trespassers  whose  trespasses  extended 
over  contiguous  lots  treated  as  one. 

The  facts  are  stated  in  the  opinion. 

Mr.  Marion  Ervrin,  with  whom  Mr.  William  J.  Wallace 
was  on  the  brief,  for  petitioners. 

Mr.  Alfred  R.  Kline  and  Mr.  Robert  L.  Shipp  for  respond- 
ents. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  bill  in  equity  brought  by  the  petitioners  against 
H.  T.  Crawford,  W.  W.  Ashbum,  now  represented  by  his 
executrix,  his  lessees,  and,  originally,  against  other  defend- 
ants who  have  been  disposed  of  and  are  not  before  us.  The 
petitioners  show  title  in  themselves,  derived  from  the  State, 
to  four  nearly  square  lots  of  land,  of  about  490  acres  each, 
contiguous  to  each  other  and  making  one  large  square  in  the 
Eighth  District  of  Colquitt  County,  Georgia.  The  right  hand 
upper  square  upon  the  map  is  numbered  353,  the  left  hand 
upper  square,  354,  the  left  hand  lower,  383,  and  the  right 
hand  lower,  384.    This  land  had  upon  it  pine  woods  valuable 


GRAVES  V,  ASHBURN.  333 

215  tJ.  S.  OpinioD  of  the  Court. 

for  timber  and  turpentine.  The  bill  alleges  that  the  peti- 
tioners being  residents  of  New  York  employed  a  firm  of 
lawyers  to  look  after  the  same ;  that  by  a  breach  of  trust  and 
without  title  or  authority  a  deed  was  made  on  behalf  of  the 
firm  purporting  to  convey  the  north  half  of  lot  353  to  the 
defendant  Ashbum;  that  he  had  notice  of  the  want  of  title, 
but  nevertheless  let  the  timber  privileges  to  another  de- 
fendant, and  that  the  latter  was  about  to  cut  the  timber  and 
had  already  boxed  the  trees  and  taken  turpentine  from  other 
portions  of  the  same  lot.  In  pursuance  of  the  same  general 
fraudulent  plan  another  voidable  or  void  conveyance  was 
made  to  Crawford  of  lot  383,  and  thereafter  Crawford  began 
to  box  the  trees  on  that  lot  and  to  carry  away  the  turpentine. 
Further  particulars  are  not  necessary  here.  The  bill  sought 
an  injunction  against  boxing  the  trees,  canying  away  tur- 
pentine, or  cutting  timber,  and  a  cancellation  of  the  fraudu- 
lent deeds. 

The  Circuit  Court  dismissed  the  bill  against  Crawford,  on 
the  ground  that  the  plaintiffs  had  a  complete  remedy  at  law, 
and  it  did  not  pass  on  the  title  to  lot  383  and  the  south  half 
of  353.  It  declared  the  plaintiffs'  title  to  lots  354,  384  and 
the  north  half  of  353,  and  granted  the  relief  prayed  in  respect 
of  them  against  Ashbum  and  others.  There  were  cross  ap- 
peals, and  the  Circuit  Court  of  Appeals  dismissed  the  bill, 
concurring  with  the  Circuit  Court  as  to  Crawford,  and  hold- 
ing, with  regard  to  Ashbum,  that  so  far  as  the  cloud  upon  the 
title  was  concemed  it  did  not  appear  sufficiently,  from  the 
biU,  that  the  plaintiffs  were  in  possession,  and  if  they  were, 
the  deed  to  Ashbum  did  not  constitute  a  cloud.  As  to  the 
cutting  of  trees,  it  was  held  that  the  remedy  at  law  was  com- 
plete. 

We  shall  deal  first  with  the  last  ground  of  decision,  which 
involves  a  difference  of  opinion  between  different  Circuit 
Courts  of  Appeals.  It  is  assumed,  as  was  found  by  the  Cir- 
cuit Court,  that  the  plaintiffs'  title  was  made  out  and  that 
the  defendant  is  or  may  be  responsible  for  the  wrong.    If  the 


334  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

defendant  is  responsible  we  are  of  opinion  that  an  injunction 
ought  to  issue.  The  industry  concerned  is  so  important  to 
the  State  of  Georgia  and  the  remedy  in  damages  is  of  such 
doubtful  adequacy  that  equity  properly  may  intervene,  al- 
though in  different  circumstances  an  injunction  against  cut- 
ting ordinary  timber  might  be  denied.  The  poUcy  of  the 
State  is  indicated  by  §  4927  of  the  Civil  Code,  1895,  continu- 
ing earlier  acts.  "  In  all  applications  ...  to  enjoin  the 
cutting  of  timber  or  boxing  or  otherwise  working  the  same 
for  turpentine  purposes,  it  shall  not  be  necessary  to  aver  or 
prove  insolvency,  or  that  the  damages  will  be  irreparable." 
Although  in  form  addressed  to  procedure  this  implies  a 
principle  grounded  upon  a  view  of  public  policy.  See  Camp 
V.  Dixon,  112  Georgia,  872.  Gray  Lumber  Co,  v.  Gaskirtj  122 
Georgia,  342.  The  same  result  has  been  reached  apart  from 
statute  by  the  Circuit  Court  of  Appeals  for  the  Sixth  Circuit 
and  in  other  cases.  Peck  v.  Ayres  &  Lord  Tie  Co.,  116  Fed. 
Rep.  273.  United  States  v.  Guglard,  79  Fed.  Rep.  21.  King  v. 
Stvart,  84  Fed.  Rep.  546.  Whatever  the  ultimate  disposition 
of  the  case  a  final  decree  should  not  be  entered  until  the  evi- 
dence has  been  considered  in  the  light  of  the  rule  that  we  lay 
down.  We  leave  the  further  consideration  to  the  court  below. 
As  the  case  is  before  us,  it  is  proper  to  add  that  we  perceive 
no  sufficient  reason  in  the  grounds  stated  for  den3dng  a  can- 
cellation of  the  deed  to  Ashbum.  The  first  of  these  grounds 
is  that  the  plaintiffs  do  not  allege  that  they  are  in  possession 
of  the  land  concerned.  We  infer  that  the  premises,  or  the 
greater  part  of  them,  are  woodland,  not  enclosed  by  fences, 
but  in  their  original  natural  condition.  If  so,  then  possession 
is  a  fiction  of  law  rather  than  a  possible  fact,  and  it  would 
be  reasonable  to  assume  that  possession  remains  with  the 
title.  Green  v.  Liter,  8  Cranch,  229.  Georgia  Code,  §  3878. 
We  may  say  more  broadly,  and  without  qualifying  Lawson 
V.  United  States  Mining  Co,,  207  U.  S.  1,  9,  that  in  view  of 
the  statute,  the  relief,  in  case  of  such  lands,  should  not  be 
made  to  depend  upon  shadowy  distinctions,  according  to  the 


GRAVES  V.  ASHBURN.  335 

215  U.  S.  Opinion  of  the  Court. 

greater  or  less  extent  of  the  trespasses  committed.  See  HoU 
land  V.  Challen,  110  U.  S.  15.  Simmons  Creek  Coal  Co,  v. 
Doran,  142  U.  S.  417,  449.  It  has  been  inthnated  by  the 
Georgia  court  that  rehef  would  be  granted,  irrespective  of 
possession.  Pierce  v.  Middle  Georgia  Land  &  Lumber  Co,, 
131  Georgia,  99.  Griffin  v.  Sketoe,  30  Georgia,  300.  See  also 
Sharon  v.  Tvcker,  144  U.  S.  533,  536,  543.  The  other  ground 
mentioned  is  that  if  Ashburn  should  sue,  his  deed  would  not 
enable  him  to  recover.  But  in  any  case  proper  for  relief  the 
deed  does  not  convey  a  good  title.  It  is  enough  that  the 
invalidity  does  not  appear  upon  its  face,  but  rests  partly  on 
matter  in  pais,  and  that  possession  under  it  for  seven  years 
might  give  a  title  by  the  Georgia  Code,  §  3589,  embodying 
earlier  statutes. 

The  fact  that  Crawford  during  the  pendency  of  the  suit 
had  cut  the  trees  on  a  portion  of  the  land  did  not  destroy  the 
jurisdiction  of  the  court.  If  that  or  the  other  grounds  that 
we  have  mentioned  were  the  reasons  for  dismissing  the  bill 
as  to  him,  it  should  be  retained  and  damages  assessed.  Milk- 
man V.  Ordway,  106  Massachusetts,  232,  253.  If  dififerent 
facts  from  those  that  we  have  discussed  were  found  to  exist 
it  does  not  appear. 

It  is  urged  that  the  bill  is  multifarious.  But  it  charges  a 
conspiracy  between  the  several  trespassers,  and  trespasses 
extending  over  the  greater  part  of  the  four  contiguous  lots 
treated  as  one.  The  objection  of  multifariousness  is  an 
objection  of  inconvenience.  The  defendants  did  not  stand 
upon  their  demurrers  setting  it  up.  There  has  been  a  trial 
after  long  delay.  In  view  of  the  evidence  and  the  fact  that 
the  objection  did  not  prevail  with  the  lower  courts,  we  are 
of  opinion  that  it  should  not  prevail  now.  While  the  decree 
must  be  reversed,  our  decision  is  without  prejudice  to  any 
finding  upon  the  facts  consistent  with  the  rules  that  we  have 
laid  down. 

Decree  reversed  and  case  remitted  to  the  Circuit  Court  for 
further  proceedings. 


336  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 


SCOTT  COUNTY  MACADAMIZED  ROAD  COMPANY  v. 
STATE  OF  MISSOURI  EX  REL.  HINES,  PROSECUT- 
ING ATTORNEY  OF  CAPE  GIRARDEAU  COUNTY. 

i 

I  ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  MISSOURI. 

i 

I  No.  52.     Argued  December  7,  8, 1909.— Decided  December  20,  1909. 

Following  the  construction  given  by  the  state  court,  held  that  where 
a  charter  for  a  toll-road  provided  that  the  privileges  granted  should 
continue  fifty  years  subject  to  the  right  of  the  county  to  acquire 
it  after  twenty  years,  all  privileges  ceased  on  the  expiration  of  the 
fifty  years;  and  the  owner  of  the  franchise  was  not  deprived  of  his 
property  without  due  process  of  law,  nor  was  the  obligation  of  the 
contract  in  its  charter  impaired,  by  an  injunction,  from  further 
maintaining  toU-^ates  on  such  road. 

207  Missouri,  54,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Edward  S.  Robert^  with  whom  Mr.  Douglas  W,  Robert 
and  Mr.  William  L.  Becktold  were  on  the  brief,  for  plaintiff  in 
error: 

A  franchise  or  charter  granted  by  a  State  to  a  quasi-public 
corporation  is  a  contract  the  obligation  of  which  cannot  be 
impaired.  St.  Clair  Turnpike  Co.  v.  Illinois,  96  U.  S.  63; 
New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650; 
New  Orleans  Waterworks  Co.  v.  Rivers,  115  U.  S.  674;  PearsaU 
V.  Great  Northern  R.  R.  Co.,  161  U.  S.  663. 

The  decision  of  a  state  court,  holding  as  a  matter  of  con- 
struction, that  a  particular  charter  or  charter  provision  does 
not  constitute  a  contract,  is  not  binding  on  this  court.  Mo- 
bile &  0.  R.  R.  Co.  V.  Tennessee,  153  U.  S.  486. 

Due  process  of  law  requires  compensation  to  be  made,  or 
secured,  to  the  owner  of  private  property  when  it  is  taken  by 


SCOTT  COUNTY  ROAD  CO.  v.  HINES.  337 

215  tJ.  S.  Argument  for  Defendant  in  Error. 

a  State  or  under  its  authority  for  public  use.  C,  N,  0.  & 
T.  P.  R.  Co.  V.  Kentucky,  115  U.  S.  321;  C,  B.  &  Q.  Ry. 
Co.  V.  Chicago,  166  U.  S.  226;  Norwood  v.  Baker,  172  U.  S. 
269. 

A  judgment  of  a  state  court,  even  if  it  be  authorized  by 
statute,  whereby  private  property  is  taken  for  the  State  or 
under  its  direction  for  public  use  without  compensation  made 
or  secured  to  the  owner,  is  wanting  in  the  due  process  of  law 
required  by  the  Fourteenth  Amendment.  Tindal  v.  Wesley, 
167  U.  S.  222;  Smyth  v.  Ames,  169  U.  S.  526. 

Corporations  are  persons  within  the  meaning  of  the  con- 
stitutional provision  forbidding  the  deprivation  of  property 
without  due  process,  as  well  as  a  denial  of  the  equal  protec- 
tion of  the  laws.  Covington  Turnpike  Co.  v.  Sandford,  164 
U.  S.  578;  Smyth  v.  Ames,  169  U.  S.  466;  People  v.  Roberts, 
171  U.  S.  658,  683;  Railway  Co.  v.  EUis,  165  U.  S.  150;  United 
States  V.  Express  Co.,  164  U.  S.  686;  Railway  v.  Beckwith,  129 
U.  S.  268;  Ghucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S. 
196;  Cooper  &c.  Co.  v.  Ferguson,  113  U.  S.  727. 

If  an  instrument  is  subject  to  two  constructions,  the  rule 
that  the  construction  most  favorable  to  the  public  should  be 
adopted  does  not  apply,  if  its  apphcation  would  obviously  de- 
feat the  legislative  intent.  A  fortiori  the  rule  has  no  applica- 
tion where  the  meaning  of  the  grant  is  clear  and  free  from 
ambiguity.  Moran  v.  Miami  Co.,  2  Black,  722;  St.  Clair 
Turnpike  Co.  v.  lUirms,  supra. 

Mr.  M.  A.  Dempsey  and  Mr.  T.  D.  Hines  for  defendant  in 
error: 

The  charter  expressly  provides  that  the  privileges  granted 
by  the  charter  shall  continue  for  fifty  years.  The  company 
and  its  franchise  to  take  tolls  therefore  expired  February  24, 
1903.    Session  Laws,  1853,  337,  338. 

The  roadbed  in  question  was  a  public  highway  established 
by  public  authority  for  public  use,  and  is  to  be  regarded  as 
a  public  easement  and  not  as  private  property.  The  right  to 
VOL.  ccxv — 22 


338  OCTOBER  TERM,  1909. 

Argument  far  Defendant  in  Error.  215  U.  S. 

travel  over  the  road  was  an  easement  vested  in  the  public, 
and  when  the  charter  expired  this  easement  continued,  dis- 
burdened of  tolls,  but  otherwise  unafifected.  State  v.  Hanni- 
bal County  Road  Co,,  138  Missouri,  332;  Campbell  on  High- 
ways, No.  8,  p.  8;  No.  14,  p.  11;  Benedict  v.  Gaity  3  Barb.  469; 
Davis  V.  New  York,  14  N.  Y.  516;  St.  Clair  Co,  Turnpike 
Co.  V.  Illinois,  96  U.  S.  63;  27  Am.  and  Eng,  Ency.  of  Law, 
320;  Pittsburg  &c.  v.  Comnumwealth,  104  Pa.  St.  583;  State 
V.  Lake,  8  Nevada,  276;  State  v.  Curry,  6  Nevada,  75;  State  v. 
Dayton,  10  Nevada,  115;  Wood  v.  Turnpike  Co.,  24  California, 
474;  Craig  v.  People,  47  Illinois,  487;  Police  v.  Jury,  44  La. 
Ann.  137;  Hayward  v.  Mayor,  8  Barb.  492;  Hooker  v.  Utica, 
12  Wend.  371;  State  v.  Passaic,  42  N.  J.  L.  524;  State  v. 
Mayor,  29  N.  J.  L.  441;  Kansas  v.  Lawrence,  22  Kansas,  438; 
Blood  V.  Woods,  95  California,  78;  People  v.  Davidson,  21 
Pac.  Rep.  538;  State  v.  Maine,  27  Connecticut,  641;  Central 
Bridge  v.  Lowell,  15  Gray,  106;  People  v.  Newburg,  86  N.  Y. 
302;  /^eo^A  v.  Barrymare,  50  N.  Y.  302. 

The  words  "perpetual  succession"  mean  continuous  suc- 
cession during  the  life  of  the  charter  only.  Of  themselves 
they  do  not  confer  perpetuity  upon  a  corporation.  The  word 
"perpetual''  qualifies  the  succession  and  not  the  duration 
of  the  corporation.  State  ex  rd.  v.  Payne,  129  Missouri,  477; 
Ralls  Co.  Case,  138  Missouri,  332. 

The  claim  of  fee  simple  to  the  roadbed  as  a  defense  is  un- 
tenable. 

No  constitutional  question  is  involved.  The  county  does 
not  seek  to  take  any  property  without  compensation  or 
without  process  of  law,  but  merely  seeks  by  process  of  law  an 
adjudication  as  to  whether  or  not  the  right  or  franchise  to 
take  tolls  has  expired. 

Injunction  is  a  proper  remedy.  This  court  is  without 
jurisdiction  to  determine  the  appeal.  There  is  no  Federal 
question  in  the  case.  Mills  v.  County  of  St.  Clair,  8  How.  567; 
Davidson  v.  New  Orleans,  96  U.  S.  97;  New  Orleans  v.  N.  0. 
Waterworks  Co.,  185  U.  S.  336;  Satterlee  v.  Matthewson,  2 


SCOTT  COUNTY  ROAD  CO.  v.  HINES.  339 

215  U.  S.  Opinion  of  the  Court. 

Pet.  380;  WaJtsm  v.  Mercer,  8  Pet.  88;  Chxirles  River  Bridge  v. 
Warren  Bridge,  11  Pet.  583;  Bank  v.  BiLckinghaniy  5  How.  317; 
Miss.  &  M.  R.  Co.  V.  Rock,  4  Wall.  177. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  suit  brought  in  pursuance  of  a  statute  to  enjoin 
the  plaintiff  in  error  from  maintaining  toll-gates  upon  a  road 
alleged  to  be  a  public  highway.  The  defendant  justifies  un- 
der a  charter  granted  by  a  special  act  of  February  24,  1853, 
which  contained  the  following  section:  "8.  The  privileges 
granted  in  this  charter  shall  continue  for  fifty  years;  pro- 
vided, that  the  county  courts  of  the  counties  of  Cape  Girar- 
deau and  Scott  may,  at  the  expiration  of  twenty  years,  or 
any  time  thereafter  purchase  said  road  at  the  actual  cost  of 
construction,  and  make  it  a  free  road.''  Mo.  Laws,  1853, 
pp.  337,  338.  The  defendant  says  that  it  has  not  received 
the  cost  of  construction,  and  sets  up  the  Constitution  of  the 
United  States,  Art.  I,  §  10,  the  Fourteenth  Amendment,'  and 
other  less  material  clauses.  The  reply  is  that  the  right  to 
take  tolls  expired  on  February  24,  1903,  when  the  fifty  years 
contemplated  by  the  charter  had  elapsed.  There  was  a  trial 
and  a  judgment  for  the  relator,  which  was  aflirmed  by  the 
Supreme  Court  of  the  State,  and  the  case  was  brought  here. 
State  ex  rd,  v.  Road  Co.,  207  Missouri,  54. 

The  plaintifif  in  error  contends  that  the  privileges  referred 
to  in  §  8  are  but  three :  the  life  of  the  corporation  brought 
into  being  by  the  charter,  the  exclusive  right  to  maintain  a 
toll-road  granted  by  §  2,  and  the  right  to  take  higher  tolls 
than  those  allowed  to  toll  companies  organized  under  a  gen- 
eral act  then  in  force;  but  that  it  cannot  be  deprived  of  its 
right  to  take  tolls  except  by  a  purchase  of  the  road  at  the 
actual  cost  of  construction.  It  says  that  the  provision  for 
the  right  to  piu'chase  at  the  expiration  of  twenty  years  'or 
at  any  time  thereafter'  imports  that  the  right  to  make  the 
road  free,  even  after  fifty  years,  can  be  gained  only  by  pur- 


340  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

chase,  and  that  the  clause  makes  a  contract  and  creates  a 
right  of  property  which  it  is  beyond  the  power  of  the  State 
to  impair  or  take  away.  The  Supreme  Court  of  Missouri 
took  a  different  view.  It  held  after  an  elaborate  discussion 
that  the  plaintiff  in  error  never  had  more  than  an  easement, 
that  this  easement  was  of  a  public  character  charged  only 
with  the  burden  of  paying  toll  during  the  time  allowed  by 
the  charter,  and  that  after  that  time  the  public  had  an  un- 
encumbered right.  The  sole  question  here  is  whether  the 
construction  of  the  charter  and  the  supposed  contract  was 
wrong. 

We  are  of  opinion  that  the  decision  of  the  state  court  was 
right,  and  that  the  meaning  of  §  8  is  so  plain  that  it  cannot  be 
made  much  clearer  by  argument.  **The  privileges  granted 
in  this  charter"  means  all  the  privileges,  including  the  priv- 
ilege of  taking  toll.  The  limitation  of  fifty  years  would  be 
almost  meaningless  if  tolls  were  not  embraced.  The  plaintiff 
in  error  recognizes  the  difficulty,  and  tries  to  meet  it  by  the 
suggestion  that  as  applied  to  tolls  the  word  '  privileges '  is  to 
be  limited  to  the  excess  of  the  tolls  allowed  above  those  men- 
tioned in  a  general  act  then  in  force.  But  the  general  act  is 
not  referred  to  in  the  section  granting  the  right  to  charge 
tolls,  or,  indeed,  in  the  charter  at  all ;  it  was  a  law  with  which 
the  specially  chartered  corporation  had  nothing  to  do.  There 
is  not  the  slightest  reason  to  suppose  that  there  was  any  im- 
plied reference  to  or  thought  of  it  when  this  act  was  passed. 
The  words  of  purchase,  'at  the  expiration  of  twenty  years, 
or  any  time  thereafter,'  do  not  convey  the  meaning  that  the 
express  limitation  of  fifty  years  is  done  away  with  in  the  same 
section  that  imposes  it,  but  must  be  read  subject  to  that 
more  specific  phrase,  even  if  'any  time  thereafter'  practically 
is  cut  down  to  any  time  within  the  fifty  years,  so  far  as  its 
value  to  the  plaintiff  in  error  is  concerned.  It  was  a  reserva- 
tion in  favor  of  the  county,  not  the  grant  of  a  new  right  to 
the  plaintiff  in  error,  and  its  operation  is  sufficient  if  as  ex- 
tensive as  the  need. 


FIRST  NATIONAL  BANK  v.  ESTHERVILLE.     341 
215  U.  S.  Argument  for  Plaintiff  in  Error. 

As  we  are  of  opinion  that  the  plaintiff  in  error  has  no  such 
rights  as  it  claims,  even  if  we  assume  that  it  has  all  the  rights 
of  the  original  corporation  created  by  the  charter,  it  is  un- 
necessary to  consider  other  difficulties  in  the  case. 

Judgment  affirmed. 


FIRST  NATIONAL  BANK  v.  CITY  COUNCIL  OF 

ESTHERVILLE. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  IOWA. 
No.  64.     Argued  December  10,  1909.— Decided  January  3,  1910. 

Where  the  validity  of  the  local  statute  under  which  national  bank 
shares  are  assessed  was  not  drawn  in  question,  but  the  only  ob- 
jection in  the  state  court  was  that  the  assessment  was  in  excess 
of  actual  value,  exorbitant,  unjust  and  not  in  proportion  with  other 
like  property,  no  Federal  right  was  set  up  or  denied  and  this  court 
has  no  jurisdiction  to  review  the  judgment  under  §  709,  Rev.  Stat. 

Writ  of  error  to  review  136  Iowa,  203,  dismissed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Charles  A.  Clark  for  plaintiff  in  error: 

The  statutes  of  Iowa,  §§  1305-1322  of  the  Code,  provide 
a  scheme  of  taxation  of  banks  by  which  the  franchises,  good 
will,  good  business  management,  dividend  earning  power, 
and  United  States  bonds  held  as  required  by  law  are  all  in- 
cluded by  force  of  the  very  statutes  themselves,  while  all  of 
these  elements  are  excluded  by  force  of  the  same  statutes, 
as  to  moneyed  capital  in  the  hands  of  individual  citizens 
and  invested  in  the  very  moneyed  institutions  which  come 
in  competition  with  national  banks. 

This  discrimination  against  national  banks  is  clearly  not 
warranted  but  forbidden  by  §  5219,  Rev.  Stat.,  and  renders 


342  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 

the  Iowa  system  of  taxing  national  banks  utterly  null  and 
void.  San  Francisco  Nat.  Bank  v.  Dodge,  197  U.  S.  70; 
Van  Allen  v.  Assessors,  3  Wall.  581;  Bradley  v.  The  People, 
4  Wall.  462;  People  v.  Commissioners,  94  U.  S.  418;  People 
V.  Weaver,  100  U.  S.  543;  Mercantile  Bank  v.  New  York,  121 
U.  S.  145,  152;  Owensboro  Nat.  Bank  v.  Owenshoro,  173  U.  S. 
679,  683;  Hubbard  v.  Board,  23  Iowa,  145. 

There  is  no  power  to  tax  the  shares  of  national  banks 
except  as  allowed  by  act  of  Congress,  now  §  5219,  Rev.  Stat. 
Home  Savings  Bank  v.  Des  Moines,  205  U.  S.  516;  Oioensboro 
Nat,  Bank  v.  Owensboro,  173  U.  S.  668;  People  v.  Weaver, 
100  U.  S.  539,  543;  Weston  v.  Charleston,  2  Pet.  449;  Osbom 
V.  Bank,  9  Wheat.  738;  McCvUough  v.  Maryland,  4  Wheat. 
316;  Bank  of  AUna  v.  City  Coumnl,  86  Iowa,  36,  37. 

The  assessor,  the  board  of  equaUzation,  and  the  courts  of 
Iowa,  are  no  less  bound  to  keep  within  the  sole  warrant  of 
authority  for  taxing  national  bank  shares  than  the  legislature 
itself. 

The  objections  of  plaintiffs  in  error  before  the  board  that 
the  proposed  taxation  was  "exorbitant  and  unjust,"  and 
that  the  valuation  of  shares  could  not  exceed  the  value  of 
assets,  as  in  the  case  of  state  banks,  moneyed  institutions  and 
private  banks  and  bankers,  raised,  ex  vi  termini,  questions 
as  to  the  validity  of  the  Iowa  statutes  under  §5219,  Rev. 
Stat. 

These  objections  were  all  urged  before  the  District  and 
Supreme  Courts.  The  courts  were  bound  to  take  judicial 
notice  of  the  Federal  and  state  statutes,  authorizing  the 
taxation  complained  of,  as  "matters  of  which  judicial  notice 
is  taken  need  not  be  stated  in  a  pleading."    Code,  §  3632. 

The  Supremo  Court  of  Iowa  knew  perfectly  well  that  the 
system  of  taxation  of  which  plaintiffs  in  error  complained 
was  wholly  void  under  §  5219,  Rev.  Stat.  Hubbard  v.  Board, 
23  Iowa,  145.    And  see  BavJc  v.  Dodge,  197  U.  S.  70. 

The  exercise  of  jurisdiction  by  this  court  to  protect  con- 
stitutional rights  cannot  be  declined  when  it  is  plain  that  the 


FIRST  NATIONAL  BANK  v.  ESTHERVILLE.     343 
215  U.  S.  Argument  for  Plaintiff  in  Error. 

fair  result  of  a  decision  is  to  deny  the  rights.  Rogers  v.  Alor- 
bama,  192  U.  S.  230;  Smithsonian  Institution  v.  St.  John,  214 
U.  S.  279. 

The  same  rule  applies  to  rights  arising  under  statutes  of 
the  United  States  enacted  to  protect  constitutional  rights  as 
in  the  present  instance.  Chapman  v.  Goodnow,  123  U.  S. 
540,  548;  Navigation  Co.  v.  Homestead  Co.,  123  U.  S.  552; 
McCuUmigh  v.  Virginia,  172  U.  S.  117;  Af.,  K.  &  T.  Ry.  Co. 
V.  EUiott,  184  U.  S.  530,  534;  Arrowsmith  v.  Harmoning,  118 
U.  S.  194;  Chicago  Life  Ins.  Co.  v.  Needles,  113  U.  S.  574; 
People  V.  Hoffmxin,  7  Wall.  16;  Williams  v.  Weaver,  100  U.  S. 
547;  Waite  v.  Dowley,  94  U.  S.  527;  Swope  v.  LeffingweU,  105 
U.  S.  3. 

The  jurisdiction  cannot  be  defeated  by  showing  that  the 
record  does  not  in  direct  terms  refer  to  statutory  or  con- 
stitutional provision,  nor  expressly  state  that  a  Federal  ques- 
tion was  presented.  The  true  jurisdictional  test  is  whether 
it  appears  that  such  a  question  was  decided  adversely  to  the 
Federal  right  claimed.  Murray  v.  Charleston,  96  U.  S.  432, 
441;  Crmjoell  v.  Randall,  10  Pet.  368;  Eureka  Co.  v.  Yvba 
County  Court,  116  U.  S.  410. 

The  contention  of  plaintiffs  in  error  arises  under  clause  2 
of  §  709,  Rev.  Stat.,  and  hence  need  not  be  set  up  and  claimed 
with  the  particularity  required  under  clause  3.  Water  Power 
Co.  V.  Street  Railway  Co.,  172  U.  S.  487;  Chapman  v.  Goodnow, 
123  U.  S.  527,  548. 

Where  the  Federal  question  arises  upon  the  record,  this 
court  has  jurisdiction  to  review,  although  the  state  court 
evades  a  decision  of  that  question  upon  the  ground  that  it 
was  not  argued  either  orally  or  in  print  as  its  decisions  re- 
quired, in  order  to  have  the  Federal  question  there  passed 
upon.  Des  Moines  Nav.  Co.  v.  Iowa  Homestead  Co.,  123  U.  S. 
554;  Deport  Bank  v.  Frankfort,  191  U.  S.  518,  519. 

The  Iowa  scheme  for  taxation  of  national  banks  is  null  and 
void  upon  its  face.  Home  Savings  Bank  v.  City  of  Des  Moines, 
205  U.  S.  503;  San  Francisco  Nat.  Bank  v.  Dodge,  197  U.  S.  80. 


344  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  216  U.  8. 

Under  their  general  prayer  for  relief,  plaintififs  in  error 
are  entitled  to  have  the  illegal  assessments  wholly  annulled 
and  set  aside.  Oteri  v.  Sccdzo,  145  U.  S.  578;  Tyler  v.  Savage, 
143  U.  S.  79;  Jones  v.  Van  Daren,  130  U.  S.  684. 

Iowa  decisions  are  to  same  efifect.  Pond  v.  Waterloo  dtc. 
Works,  50  Iowa,  596;  Hoshins  v.  Roive,  61  Iowa,  180;  Lavcrty 
V.  Sexton,  41  Iowa,  435;  Herring  v.  Neeiy,  43  Iowa,  157;  Hait 
V.  Ensign,  61  Iowa,  724. 

Mr.  Byron  M,  Coon  for  defendant  in  error. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the 
court. 

This  was  an  appeal  under  §  1373  of  the  Code  of  Iowa  from 
the  action  of  the  members  of  the  city  council  of  the  city  of 
Estherville,  Iowa,  sitting  as  a  board  of  equalization  and  re- 
view, in  fixing  the  assessed  value  of  the  shares  of  stock  in  the 
plaintiff  bank  for  the  year  1906.  The  shares  of  stock  in  the 
plaintiff  bank  were  assessed  by  the  assessor  on  the  basis  of 
the  book  or  assessed  value  obtained  by  adding  the  capital, 
surplus  and  undivided  profits  of  the  bank  and  dividing  the 
sum  total  by  the  number  of  shares  of  capital  stock  to  ascertain 
the  value  of  one  share,  a  proper  deduction  having  been  made 
on  account  of  real  estate  owned  by  the  bank.  The  Board  of 
Review  and  Equalization  raised  the  assessed  valuation  of  the 
shares  to  $130  per  share.  The  bank  and  its  shareholders  ap- 
peared before  the  Board  and  objected  to  its  action  and  to  the 
valuation  fixed  by  them  as  being  in  excess  of  the  actual  value, 
and  exorbitant  and  unjust.  The  bank  contended  that  the 
stock  was  not  assessed  and  valued  in  proportion  to  other  like 
personal  property  in  the  city  of  Estherville,  but  was  grossly 
in  excess  thereof,  and  constituted  unfair  and  imequal  taxa- 
tion, and  that  the  taxable  value  of  the  shares  of  the  stock  in 
the  bank  should  be  found  as  the  assessor  had  previously  found 
it.  But  the  Board  adhering  to  its  own  judgment,  plaintiffs 
perfected  an  appeal  to  the  District  Court  of  Emmett  County, 


FIRST  NATIONAL  BANK  v.  ESTHERVILLE.      345 

215  U.  S.  Opinion  of  the  Court. 

Iowa.  In  that  court  plaintiffs  filed  a  pleading  containing  a 
recital  of  the  facts  and  demanding  relief,  and  reiterating  the 
same  contention  as  made  below  and  the  same  claim  as  to  the 
proper  manner  to  arrive  at  the  assessable  valuation  of  said 
shares  of  stock.  Answer  was  filed  in  behalf  of  the  Board, 
wherein  it  was  denied  that  the  assessment  as  raised  was 
unjust,  and  asserted  that  the  market  value  was  the  proper 
criterion  for  valuation,  and  that  the  actual  and  market  value 
of  the  stock  in  question  was  even  greater  than  that  fixed  in 
the  raised  assessment.  It  was  also  denied  that  the  assessment 
was  unfair  as  related  to  the  assessment  on  other  like  property. 

The  District  Court  sustained  the  action  of  the  Board  of 
Review,  whereupon  the  case  was  appealed  to  the  Supreme 
Court  of  Iowa,  which  aflSrmed  the  decree  of  the  District  Court. 
First  Nat.  Bank  v.  EsthervUle,  136  Iowa,  203.  In  the  Supreme 
Court  it  was  contended  for  the  first  time  that  the  action  of 
the  Board  worked  a  violation  of  §  5219  of  tlie  United  States 
Revised  Statutes,  touching  upon  state  taxation  of  National 
Bank  shares.  Because  of  the  fact  that  such  matter  was  not 
presented  to  the  Board  or  suggested  on  the  trial  in  the  court 
below,  the  Supreme  Court  refused  to  entertain  the  question. 
What  the  court  said  was  this  (p.  206) : 

"In  doing  so  we  shall  first  dispose  of  a  matter  of  conten- 
tion brought  forward  for  the  first  time  in  argument  in  this 
court.  This  contention  is  through  the  action  of  the  defendant 
board  as  complained  of,  there  was  worked  a  violation  of 
§  5219  of  U.  S.  Revised  Statutes,  having  to  do  with  the  sub- 
ject of  state  taxation  of  national  shares.  As  confessedly  such 
matter  was  not  presented  to  the  board,  or  suggested  on  the 
trial  in  the  court  below,  we  cannot  give  consideration  thereto 
on  merits  in  this  court.  And  this  is  to  follow  our  repeated  de- 
cisions bearing  on  the  subject.  RaUvxiy  Co.  v.  Cedar  Rapids, 
106  Iowa,  476;  Trust  Co.  v.  Fonda,  114  Iowa,  728." 

And  further  (p.  208) : 

"On  appeal  to  the  District  Court  the  statute  (Code,  §  1373) 
provides  for  a  hearing  as  in  equity.    This,  however,  is  not  to 


346  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

be  construed  as  clothing  the  court  with  jurisdiction  to  sit  as 
an  assessing  tribunal.  Frost  v.  Boards  114  Iowa,  103;  Farmers' 
&c.  Co,  V.  Fonda,  114  Iowa,  728.'' 

We  are  met  at  the  threshold  by  a  motion  to  dismiss  for 
want  of  jurisdiction.  It  was  ruled  in  Tyler  v.  Judges  of 
Registration^  179  U.  S.  405,  408,  that  although  "it  is  true  that 
under  the  third  clause  of  §  709,  Rev.  Stat.,  where  a  title, 
right,  privilege,  or  immunity  is  claimed  under  Federal  law, 
such  title,  etc.,  must  be  'specially  set  up  or  claimed'  and  that 
no  such  provision  is  made  as  to  cases  within  the  second  clause, 
involving  the  constitutionality  of  state  statutes  or  authorities, 
but  it  is  none  the  less  true  that  the  authority  of  such  statute 
must  'be  drawn  in  question'  by  some  one  who  has  been  af- 
fected by  the  decision  of  the  state  court  in  favor  of  its  validity, 
and  that  in  this  particular  the  three  clauses  of  the  section  are 
practically  identical." 

In  order  to  give  this  court  jurisdiction  of  a  writ  of  error 
to  the  highest  court  of  a  State  in  which  a  decision  could  be 
had  it  must  appear  affirmatively  that  a  Federal  question  was 
presented  for  decision,  that  its  decision  was  necessary  to  the 
determination  of  the  cause,  and  that  it  was  actually  decided 
or  that  the  judgment  rendered  could  not  have  been  given 
without  deciding  it. 

The  only  complaint  made  before  the  reviewing  board  and 
the  District  Court  was  that  the  assessment  was  in  excess  of 
the  actual  value  of  such  stock  and  exorbitant  and  unjust,  and 
that  the  taxable  value  thereof  should  be  no  greater  sum  than 
is  obtained  by  adding  the  capital,  surplus  and  undivided 
profits  of  said  bank,  subtracting  therefrom  the  amount  of  the 
bank's  capital  invested  in  real  estate,  and  dividing  the  re- 
mainder by  the  number  of  its  shares  of  capital  stock  to  obtain 
the  true  assessable  value  of  one  share  of  stock;  also  that  "said 
stock  is  not  assessed  and  valued  in  proportion  to  other  like 
personal  property  in  the  city  of  Estherville,  but  is  grossly  in 
excess  thereof,  and  unfair  to  these  appellants  and  is  unequal 
taxation." 


FIRST  NATIONAL  BANK  v.  ESTHERVILLE.      347 
215  U.  S.  Opinion  of  the  Court. 

These  were  not  Federal  questions.  No  mention  of  the 
national  banking  act  was  made,  nor  any  right  or  privilege 
claimed  under  it,  nor  were  the  provisions  of  the  Revised 
Statutes  invoked  by  name  or  otherwise.  There  was  no  asser- 
tion of  an  issue  in  the  case  claiming  the  local  statutes  to  be  in 
conflict  with  or  repugnant  to  the  terms  of  §5219  of  the 
Revised  Statutes,  or  the  Constitution  of  the  United  States. 
Plaintiffs  filed  a  written  pleading  in  the  District  Court,  in 
which  they  set  out  all  proceedings  leading  up  to  the  appeal 
and  the  grounds  for  their  complaint  against  the  action  of  the 
equalization  board,  and  when  the  case  went  to  trial  filed  an 
amendment,  alleging  the  additional  grievance  of  inequaUty. 
Section  1322  of  the  Iowa  Code  reads  as  follows : 
"National,  state  and  savings  banks. — Shares  of  stock  of 
national  banks  shall  be  assessed  to  the  individual  stock- 
holders at  the  place  where  the  bank  is  located.  Shares  of 
stock  of  state  and  savings  banks  and  loan  and  trust  com- 
panies shall  be  assessed  to  such  banks  and  loan  and  trust 
companies  and  not  to  the  individual  stockholders.  At  the 
time  the  assessment  is  made,  the  officers  of  national  banks 
shall  furnish  the  assessor  with  a  Ust  of  all  the  stockholders 
and  the  number  of  shares  owned  by  each,  and  he  shall  list 
to  each  stockholder  under  the  head  of  corporation  stock  the 
total  value  of  such  shares.  To  aid  the  assessor  in  fixing  the 
value  of  such  shares,  the  corporations  shall  furnish  him  a 
verified  statement  of  all  the  matters  provided  in  the  preced- 
ing section,  which  shall  also  show,  separately,  the  amount  of 
capital  stock,  and  the  surplus  and  undivided  earnings,  and 
the  assessor,  from  such  statement  and  other  information  he 
can  obtain,  including  any  statement  furnished  to  and  informa- 
tion obtained  by  the  auditor  of  state,  which  shall  be  furnished 
him  on  request,  shall  fix  the  value  of  such  stock,  taking  into 
account  the  capital,  surplus  and  undivided  earnings.  In 
arriving  at  the  total  value  of  the  shares  of  stock  of  such  cor- 
porations, the  amount  of  their  capital  actually  invested  in 
real  estate  owned  by  them  and  in  the  shares  of  stock  of  cor- 


348  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

porations  owning  only  the  real  estate  (inclusive  of  leasehold 
interest,  if  any)  on  or  in  which  the  bank  or  trust  company  is 
located,  shall  be  deducted  from  the  real  value  of  such  shares, 
and  such  real  estate  shall  be  assessed  as  other  real  estate,  and 
the  property  of  such  corporations  shall  not  be  otherwise 
assessed." 

But  the  court  held  that  the  assessor  need  not  rely  entirely 
upon  the  statements  which  the  bank  is  required  by  the  section 
to  furnish,  but  might  take  into  consideration  other  informa- 
tion he  might  obtain,  and,  construing  that  section  in  connec- 
tion with  §  1305  of  the  Code  of  Iowa  reading,  "All  property 
subject  to  taxation  shall  be  valued  at  its  actual  value.  .  .  . 
Such  assessed  value  shall  be  taken  and  considered  as  the  tax- 
able value  of  such  property,  upon  which  the  levy  shall  be 
made.  Actual  value  of  property  as  used  in  this  chapter  shall 
mean  its  value  in  the  market  in  the  ordinary  course  of  trade," 
found  that  the  shares  should  be  assessed  at  their  market 
or  sale  values,  and  then  the  court  proceeded  to  ascertain,  on 
the  facts,  whether  the  shares  were  taxed  at  more  than  their 
market  value  and  whether,  at  a  greater  rate  in  proportion  to 
the  value  of  other  like  personal  property. 

If  plaintiffs  in  error  believed  that  the  local  statute  was 
unconstitutional  and  invalid  because  of  conflict  with  the  Fed- 
eral CoiivStitution  or  statute,  they  could  and  should  have  said 
so,  but  the  validity  of  the  act  was  nowhere  specifically  drawn 
in  question. 

Writ  of  error  dismissed. 


KUHN  V.  FAIRMONT  COAL  CO.  349 

215  U.  S  Argument  for  Kuhn. 


KUHN  r.  FAIRMONT  COAL  COMPANY, 

CERTIFICATE  FROM  THE  CIRCUIT  COURT  OF  APPEALS  FOR  THE 

FOURTH  CIRCUIT. 

No.  50.     Argued  December  3,  6,  1909. — Decided  January  3,  1910. 

When  administering  state  laws  and  determining  rights  accruing 
thereunder,  the  jurisdiction  of  the  Federal  court  is  an  independent 
one,  coordinate  and  concurrent  with,  and  not  subordinate  to,  the 
jurisdiction  of  the  state  courts. 

Rules  of  law  relating  to  real  estate,  so  established  by  state  decisions 
rendered  before  the  rights  of  the  parties  accrued,  as  to  have  become 
rules  of  property  and  action,  are  accepted  by  the  Federal  court; 
but  where  the  law  has  not  thus  been  settled  it  is  the  right  and  duty 
of  the  Federal  court  to  exercise  its  own  judgment,  as  it  always  does 
in  cases  depending  on  doctrines  of  commercial  law  and  general 
jurisprudence. 

liven  in  questions  in  which  the  Federal  court  exercises  its  own  judg- 
ment, the  Federal  court  should,  for  the  sake  of  comity  and  to  avoid 
confusion,  lean  to  agreement  with  the  state  court  if  the  question  is 
balanced  with  doubt. 

When  determining  the  effect  of  conveyances  or  written  instruments 
between  private  parties,  citizens  of  different  States,  it  is  the  right 
and  duty  of  the  Federal  court  to  exercise  its  own  independent  judg- 
ment where  no  authoritative  state  decision  had  been  rendered  by  the 
state  court  before  the  rights  of  the  parties  had  accrued  and  become 
final. 

The  Federal  court  is  not  bound  by  a  decision  of  the  state  court,  ren- 
dered after  the  deed  involved  in  the  case  in  the  Federal  court  was 
made  and  after  the  injury  was  sustained,  holding  that  there  is  no 
implied  reservation  in  a  deed  conveying  subsurface  coal  and  the 
right  to  mine  it  to  leave  enough  coal  to  support  the  surface  in  its 
original  position. 

The  facts  are  stated  in  the  opinion. 

Mr.  Homer  W.  Williams  for  Kuhn : 

The  Griffin  case  decided  by  the  state  court  does  not  construe 
any  statute  and  cannot  be  placed  in  th(^  class  of  cases  decided 


350  OCTOBER  TERM,  1909. 

Argument  for  Kuhn.  215  U.  S. 

by  the  state  courts  which  control  Federal  courts.  Nor  does 
it  establish  any  rule  of  property.  This  is  an  action  of  tres- 
pass on  the  case  for  tort.  None  of  the  cases  cited  by  defend- 
ant apply. 

Decisions  of  the  state  court  even  when  decided  upon  a  stat- 
ute or  upon  the  principle  of  an  established  rule  of  property, 
do  not  preclude  the  Federal  court  from  passing  on  questions  of 
contract  out  of  which  the  cause  of  action  accrued  before  the 
decision  of  the  state  court.  Swift  v.  Tyson^  16  Pet.  1 ;  Griffin 
V.  Overman  Wheel  Co.,  9  C.  C.  A.  584;  Rowan  v.  Runnels^  10 
How.  134;  Lawrence  v.  Wickwarej  Fed.  Gas.  No.  8,148;  S,  C, 
4  McLean,  56;  Pease  v.  Peck,  18  How.  599;  Roberts  v.  BoUes, 
101  U.  S.  119;  Burgess  v.  Sdigman,  107  U.  S.  20;  Detroit  v. 
Railroad  Co,,  55  Fed.  Rep.  569;  King  v.  Investment  Co.,  28 
Fed.  Rep.  33;  Groves  v.  Slaughter,  15  Pet.  497;  Sim^  v.  Huns- 
ley,  6  How.  1. 

The  Federal  courts  are  not  bound  in  cases  involving  va- 
lidity of  municipal  bonds  by  decisions  of  state  courts  made 
after  the  bonds  are  issued.  Enfidd  v.  Jordan,  119  U.  S.  680; 
BoUes  V.  Brimfidd,  120  U.  S.  759;  Bamum  v.  OkoUma,  148 
U.  S.  393;  Gibson  v.  Lyon,  115  U.  S.  439. 

The  Federal  courts  are  not  bound  by  decisions  of  the  state 
court  where  private  rights  are  to  be  determined  by  application 
of  common-law  rules  alone,  Chicago  v.  Robbins,  2  Black,  418; 
HiU  V.  Hite,  29  C.  C.  A.  55;  or  contract  rights  depending  on  a 
state  statute  or  provision  of  the  Constitution  if  the  decision  of 
state  court  is  made  after  the  contract.  Central  Trust  Co.  v. 
Street  Railway  Co.,  82  Fed.  Rep.  1;  Trust  Co.  v.  Cincinnati,  76 
Fed.  Rep.  296;  Jones  v.  Hotel  Co.,  79  Fed.  Rep.  447. 

As  to  provisions  in  a  deed  that  are  merely  contractual  and 
do  not  affect  the  title  the  Federal  courts  are  not  bound  by 
state  court  decisions.  Fire  Ins.  Co.  v.  Railway  Co.,  62  Fed. 
Rep.  904;  Bartholomew  v.  City  of  Austin,  85  Fed.  Rep.  359; 
Jones  V.  Hotel  Co.,  86  Fed.  Rep.  370;  and  see  also  Speer  v. 
Commissioners,  88  Fed.  Rep.  749;  Clapp  v.  Otoe  County,  104 
Fed.  Rep.  473. 


mmm^^ 


KUHN  V.  FAIRMONT  COAL  CO.  351 

215  U.  S.  Argument  for  Fairmont  Goal  Co. 

Nor  should  the  decision  of  the  state  court  be  followed  to 
such  an  extent  as  to  sacrifice  truth,  justice  or  law.  FauLkner 
V.  Hart,  82  N.  Y.  416;  Lane  v.  Vick,  3  How.  462;  Foxcraft  v. 
MaUeU,  4  How.  353;  Loan  Co.  v.  Harris,  113  Fed.  Rep.  36. 

Mr,  Z.  Taylor  Vinson  and  Mr.  Edward  A.  Brannon  for 
Fairmont  Coal  Company : 

It  is  the  duty  of  the  Federal  courts  to  follow  the  decisions 
of  the  highest  court  of  a  State  in  cases  pending  in  the  former 
where  the  decision  of  the  state  court  construes  a  state  statute 
or  local  law  or  interprets  deeds  or  grants  to  real  estate  and 
determines  rights  pertaining  thereto,  wherein  no  Federal  ques- 
tion is  involved;  nor  is  this  duty  affected  by  the  fact  that  the 
decision  is  made  by  the  state  court  after  the  contract  rights 
involved  in  the  case  in  the  Federal  court  had  accrued.  Hart- 
ford Ins.  Co.  V.  Chicago  &c.  Ry.  Co.,  175  U.  S.  91,  108;  Rowan 
V.  Runnels,  5  How.  134,  139;  Morgan  v.  Curtenius,  20  How.  1; 
Fairfield  v.  Gallatin  County,  100  U.  S.  47,  52;  Burgess  v.  Sdig- 
man,  107  U.  S.  20,  35;  Bauserman  v.  Blunt,  147  U.  S.  647, 
653;  Williams  v.  Eggleston,  170  U.  S.  304,  311;  Sioux  City 
R.  R.  V.  Trust  Co.  ofN.  A.,  173  U.  S.  99. 

In  determining  what  are  the  laws  of  the  several  States,  we 
are  bound  to  look  not  only  at  their  constitutions  and  statutes 
but  also  at  the  decisions  of  their  highest  courts.  Wade  v. 
Trams  County,  174  U.  S.  499;  Polk's  Lessee  v.  Wendai,  9 
Cranch,  87 ;  Luther  v.  Borden,  7  How.  1 ;  Nesmith  v.  Sheldon, 
7  How.  812;  Jefferson  Bank  v.  Skdly,  1  Black,  436;  LeffingwelL 
V.  Warren,  2  Black,  599;  Christy  v.  Pridgeon,  4  Wall.  196; 
Post  V.  Supervisors,  105  U.  S.  667;  Bucher  v.  Cheshire  R.  R. 
Co.,  125  U.  S.  555;  Jackson  v.  Chew,  6  Pet.  648;  Russell  v. 
Southard,  12  How.  139. 

The  construction  of  deeds  for  the  transfer  of  land  between 
private  parties,  given  by  the  highest  court  of  the  State  in 
which  the  land  lies,  will  be  adopted  and  followed  by  the  Fed- 
eral courts  whenever  the  same  question  is  presented  to  them. 
East  Central  Eureka  Co.  v.  Central  Eureka  Co.,  204  U.  S.  266, 


352  OCTOBER  TERM,  1909. 

Argument  for  Fairmont  Coal  Co.  215  U.  S. 

272;  citing  Brine,  v,  Hartford  Ins.  Co.,  96  U.  S.  627,  636;  De- 
Vaughn  v.  Hutchinson,  165  U.  S.  566;  and  see  also  United 
States  V.  Crosby,  7  Cranch,  115;  Clark  v.  Graham,  6  Wheat. 
577;  McGoon  v.  Scales,  9  Wall.  23;  OlcoU  v.  Bynum,  17  Wall. 
44;  Ex  parte  McNeU,  13  Wall.  236;  Clark  v.  Clark,  178  U.  S. 
186;  Oliver  v.  Clarke,  106  Fed.  Rep.  402;  Berry  v.  Bank,  93 
Fed.  Rep.  44. 

The  Federal  courts  will  lean  toward  an  agreement  of  views 
with  the  state  courts  if  the  question  seems  balanced  with 
doubt.  Waterworks  v.  Tampa,  199  U.  S.  244;  Mead  v.  Portr 
land,  200  U.  S.  163;  Burgess  v.  Seligrmn,  107  U.  S.  20;  Wilson 
V.  Standefer,  184  U.  S.  399,  412;  Bienville  Water  Co.  v.  Mo- 
bile, 186  U.  S.  212,  220;  Chicago  Seminary  v.  lUinais,  188  U.  S. 
622,  674. 

The  construction  given  by  the  state  court  to  the  similar 
deeds  in  the  Griffin  case,  announced  no  new  rules  of  interpre- 
tation of  deeds ;  but,  on  the  contrary,  followed  strictly  a  line 
of  decisions  of  the  state  courts  of  West  Virginia  and  Virginia 
made  long  prior  to  the  date  of  the  deed  involved  in  this  case. 
No  rule  of  law  previously  established  has  been  changed  but 
the  decision  is  in  perfect  accord  with  the  English  decisions. 
McSwinney  on  Mines,  see  59  W.  Va.  507;  Hurst  v.  Hurst, 
7  W.  Va.  339;  Snodgrass  v.  Wolf,  11  W.  Va.  158;  Barber  v. 
F.  &  M.  Ins.  Co,,  16  W.  Va.  658;  O'Brim  v.  Brice,  21  W.  Va. 
704;  Gibney  v.  Fitzsimmons,  45  W.  Va.  334;  Long  v.  Perrine, 
41  W.  Va.  158;  McDougall  v.  Musgrave,  46  W,  Va.  509;  2 
Minor's  Inst.  pp.  996,  1066;  Carrington  v.  Goddin,  13  Gratt. 
587;  Wilson  v.  Langhome,  102  Virginia,  631;  King  v.  Norfolk 
&  Western,  99  Virginia,  625. 

The  court  will  not  write  new  covenants  into  a  deed.  See 
Gavinzd  v.  Crump,  22  Wall.  308;  Baltzer  v.  Air  Line  Co.,  115 
U.  S.  634;  D.  &  H.  Canal  Co.  v.  Pertna.  Coal  Co.,  8  Wall.  276, 
290.  The  laws  of  the  State  in  which  land  is  situated  control 
exclusively  its  descent,  alienation  and  transfer,  and  the  effect 
and  construction  of  instruments  intended  to  convey  it.  Cases 
stipra  and  Abraham  v.  Casey,  179  U.  S.  210;  Claiborne  Co.  v. 


KUHN  V,  FAIRMONT  COAL  CO.  353 

215  U.  S.  Opinion  of  the  Court. 

Brooks,  111  U.  S.  400;  Wmiams  v.  KuOand,  13  WaU.  306; 
Amdt  V.  Griggs  J  134  U.  S.  316 ;  Suydam  v.  WiUiamsony  24  How. 
427;  Chicago  v.  Bobbins,  2  Black,  418;  Green  v.  Neat,  6  Pet. 
291,  296. 

The  rules  of  property  covered  by  this  principle  include 
those  governing  transfer,  descent,  title  and  possession.  War- 
burton  v.  White,  176  U.  S.  484;  11  Cyc.  903;  Bufardv.  Kerr, 
90  Fed.  Rep.  513 ;  Foster  v.  QUA  Gas  Co.,  90  Fed.  Rep.  178. 

This  court  has  at  times  overruled  its  own  decisions  so  as 
to  conform  to  the  decisions  of  the  state  court,  affecting  titles 
to  real  estate.  Roberts  v.  Lewis,  153  U.  S.  367;  Lowndes  v. 
Huntington,  153  U.  S.  1;  Moares  v.  Bank,  104  U.  S.  625;  Far- 
sythe  V.  Hammond,  166  U.  S.  518;  Board  v.  Coler,  180  U.  S.  506. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

This  case  is  here  on  a  question  propounded  under  the  au- 
thority of  the  Judiciary  Act  of  March  3,  1891,  relating  to  the 
jurisdiction  of  the  courts  of  the  United  States.  26  Stat.  826, 
c.  517,  §  6.  The  facts  out  of  which  the  question  arises  are 
substantially  as  will  be  now  stated. 

On  the  twenty-first  day  of  November,  1889,  the  plaintiff 
Kuhn,  a  citizen  of  Ohio,  sold  and  conveyed  to  Camden  all 
the  coal  underlying  a  certain  tract  of  land  in  West  Virginia 
of  which  he,  Kuhn,  was  the  owner  in  fee.  The  deed  contained 
these  clauses:  "The  parties  of  the  first  part  do  grant  unto  the 
said  Johnson  N.  Camden  all  the  coal  and  mining  privileges 
necessary  and  convenient  for  the  removal  of  the  same,  in, 
upon  and  under  a  certain  tract  or  parcel  of  land  situated  in 
the  county  of  Marion,  on  the  waters  of  the  West  Fork  River, 
bounded  and  described  as  follows,  to  wit :  .  .  .  Together 
with  the  right  to  enter  upon  and  under  said  land  and  to  mine, 
excavate  and  remove  all  of  said  coal,  and  to  remove  upon 
and  under  the  said  lands  the  coal  from  and  under  adjacent, 
coterminous  and  neighboring  lands,  and  also  the  right  to 
enter  upon  and  under  the  tract  of  land  hereinbefore  described 
VOL.  ccxv — 23 


354  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

and  make  all  necessary  structures,  roads,  ways,  excavations, 
airshafts,  drains,  drainways  and  openings  necessary  or  con- 
venient for  the  mining  and  removal  of  said  coal  and  the  coal 
from  coterminous  and  neighboring  lands  to  market." 

The  present  action  of  trespass  on  the  case  was  brought 
January  18th,  1906.  The  declaration  alleged  that  the  coal 
covered  by  the  above  deed  passed  to  the  defendant,  the 
Fairmont  Coal  Company,  a  West  Virginia  corporation,  on 
the of  January,  1906;  that  the  plaintiif  Kuhn  was  en- 
titled of  right  to  have  all  his  surface  and  other  strata  over- 
lying the  coal  supported  in  its  natural  state  either  by  pillars 
or  blocks  of  coal  or  by  artificial  support;  that  on  the  day 
named  the  defendant  company  mined  and  removed  coal 
from  under  the  land,  leaving,  however,  large  blocks  or  pil- 
lars of  coal  as  a  means  of  supporting  the  overljring  surface; 
that  the  coal  company,  disregarding  the  plaintiff's  rights,  did 
knowingly,  willfully  and  negligently,  without  miaking  any 
compensation  therefor,  or  for  the  damages  arising  therefrom, 
mine  and  remove  all  of  said  blocks  and  pillars  of  coal  so  left, 
by  reason  whereof  and  because  of  the  failure  to  provide  any 
proper  or  sufficient  artificial  or  other  support  for  the  over- 
lying surface,  the  plaintiff's  surface  land,  or  a  large  portion 
thereof,  was  caused  to  fall;  and  that  it  was  cracked,  broken 
and  rent,  causing  large  holes  and  fissures  to  appear  upon  the 
surface  and  destroying  the  water  and  water  courses. 

The  contract  under  which  the  title  to  the  coal  originally 
passed  was  executed  in  West  Virginia  and  the  plaintiff's 
cause  of  action  arose  in  that  State. 

A  demurrer  to  the  declaration  was  sustained  by  the  Circuit 
Court,  an  elaborate  opinion  being  delivered  by  Judge  Dayton, 
Kuhn  V.  Fairmont  Coal  Co,,  152  Fed.  Rep.  1013.  The  case 
was  then  taken  upon  writ  of  error  to  the  Circuit  Court  of 
Appeals. 

It  appears  from  the  statement  of  the  case  made  by  the 
Circuit  Court  of  Appeals  that  in  the  year  1902,  after  Kuhn's 
deed  to  Camden,  one  Griffin  brought,  in  a  court  of  West 


KUHN  «.  FAIRMONT  COAL  CO.  355 

215  U.  S.  Opinion  of  the  Court. 

Virginia,  an  action,  similar  in  all  respects  to  the  present  one, 
against  the  Fairmont  Coal  Company,  the  successor  of  Camden. 
His  rights  arose  from  a  deed  almost  identical  with  that 
executed  by  Kuhn  to  Camden.  That  case  was  ruled  in  favor 
of  the  Coal  Company,  and,  subsequently,  was  taken  to  the 
Supreme  Court  of  West  Virginia,  which  announced  its  opinion 
therein  in  November,  1905.  A  petition  for  rehearing  having 
been  filed,  the  judgment  was  stayed.  But  the  petition  was 
overruled  March  27,  1906,  on  which  day,  after  Kuhn's  suit 
was  brought,  the  decision  previously  announced  in  the  Griffin 
case  became  final  under  the  rules  of  the  Supreme  Court  of  the 
State.    Griffin  v.  Coal  Co,,  59  W.  Va.  480. 

The  contention  by  the  Coal  Company  in  the  court  below 
was  that  as  the  decision  in  the  Griffin  case  covered,  sub- 
stantially, the  same  question  as  the  one  here  involved,  it 
was  the  duty  of  the-  Federal  court  to  accept  that  decision  as 
controlling  the  rights  of  the  present  parties,  whatever  might 
be  its  own  opinion  as  to  the  law  applicable  to  this  case.  The 
contention  of  Kuhn  was  that  the  Federal  court  was  under  a 
duty  to  determine  the  rights  of  the  present  parties  upon  its 
own  independent  judgment,  giving  to  the  decision  in  the 
state  court  only  such  weight  as  should  be  accorded  to  it 
according  to  the  established  principles  in  the  law  of  con- 
tracts and  of  sound  reasoning;  also,  that  the  Federal  court 
was  not  bound  by  a  decision  of  the  state  court  in  an  action 
of  trespass  on  the  case  for  a  tort  not  involving  the  title  to 
land. 

Such  being  the  issue,  the  Circuit  Court  of  Appeals,  pro- 
ceeding under  the  Judiciary  Act  of  March  3d,  1891,  c.  517, 
have  sent  up  the  following  question  to  be  answered : 

"Is  this  court  bound  by  the  decision  of  the  Supreme  Court 
in  the  case  of  Griffin  v.  Fairmont  Coal  Company,  that  being 
an  action  by  the  plaintiff  against  the  defendant  for  damages 
for  a  tort,  and  this  being  an  action  for  damages  for  a  tort 
based  on  facts  and  circumstances  almost  identical,  the  lan- 
guage of  the  deeds  with  reference  to  the  granting  clause  being 


356  OCTOBER  TERM,  1909 

Opinion  of  the  Court.  215  U.  S. 

in  fact  identical,  that  case  having  been  decided  after  the  con- 
tract upon  which  defendant  relies  was  executed,  after  the 
injury  complained  of  was  sustained,  and  after  this  action  was 
instituted?" 

There  is  no  room  for  doubt  as  to  the  scope  of  the  decision 
in  the  Griffin  case.  The  syllabus — (p.  480)  which  in  West 
Virginia  is  the  law  of  the  case,  whatever  may  be  the  reason- 
ing employed  in  the  opinion  of  the  court — is  as  follows: 
"1.  Deeds  conveying  coal  with  rights  of  removal  should  be 
construed  in  the  same  way  as  other  written  instruments, 
and  the  intention  of  the  parties  as  manifest  by  the  language 
used  in  the  deed  itself  should  govern.  2.  The  vendor  of  land 
may  sell  and  convey  his  coal  and  grant  to  the  vendee  the 
right  to  enter  upon  and  under  said  land  and  to  mine,  excavate 
and  remove  all  of  the  coal  purchased  and  paid  for  by  him, 
and  if  the  removal  of  the  coal  necessarily  causes  the  surface 
to  subside  or  break,  the  grantor  cannot  be  heard  to  complain 
thereof.  3.  Where  a  deed  conveys  the  coal  under  a  'tract  of 
land,  together  with  the  right  to  enter  upon  and  under  said 
land,  and  to  mine,  excavate  and  remove  all  of  it,  there  is  no 
implied  reservation  in  such  an  instrument  that  the  grantee 
must  leave  enough  coal  to  support  the  surface  in  its  original 
position.  4.  It  is  the  duty  of  the  court  to  construe  contracts 
as  they  are  made  by  the  parties  thereto,  and  to  give  full  force 
and  effect  to  the  language  used,  when  it  is  clear,  plain,  simple 
and  unambiguous.  5.  It  is  only  where  the  language  of  a  con- 
tract is  ambiguous  and  uncertain  and  susceptible  of  more 
than  one  construction  that  a  court  may,  under  the  well- 
established  rules  of  construction,  interfere  to  reach  a  proper 
construction  and  make  certain  that  which  in  itself  is  imcer- 
tain." 

Nor  can  it  be  doubted  that  the  point  decided  in  the  Griffin 
case  had  not  been  previously  adjudged  by  the  Supreme  Court 
of  that  State.  Counsel  for  the  Coal  Company  expressly  state 
that  the  question  here  involved  was  never  before  the  legislature 
or  courts  of  West  Virginia  until  the  deed  involved  in  the 


KUHiX  V.  FAIRMONT  COAL  CO.  357 

215  U.  S.  Opinion  of  the  CJourt. 

Griffin  case  came  before  the  Supreme  Court  of  that  State 
for  construction;  that  *' until  then  there  was  no  law  and  no 
local  custom  upon  the  subject  in  force  in  West  Virginia;" 
and  that  "only  after  the  holding  of  the  state  court  in  the 
Griffin  case  could  it  be  said  that  the  narrow  question  therein 
decided  had  become  a  rule  of  property  in  that  State." 

In  this  view  of  the  case  was  not  the  Federal  court  bound  to 
determine  the  dispute  between  the  parties  according  to  its 
own  independent  judgment  as  to  what  rights  were  acquired 
by  them  under  the  contract  relating  to  the  coal?  If  the 
Federal  court  was  of  opinion  that  the  Coal  Company  was 
under  a  legal  obligation  while  taking  out  the  coal  in  question 
to  use  such  precautions  and  to  proceed  in  such  way  as  not  to 
destroy  or  materially  injure  the  surface  land,  was  it  bound 
to  adjudge  the  contrary  simply  because,  in  a  single  case,  to 
which  Kuhn  was  not  a  party  and  which  was  determined  after 
the  right  of  the  present  parties  had  accrued  and  become  fixed 
under  their  contract,  and  after  the  injury  complained  of  had 
occurred,  the  state  court  took  a  different  view  of  the  law? 
If,  when  the  jurisdiction  of  the  Federal  court  was  invoked, 
Kuhn,  the  citizen  of  Ohio  had,  in  its  judgment  a  valid  cause 
of  action  against  the  Coal  Company  for  the  injury  of  which 
he  complained,  was  that  court  obliged  to  subordinate  its  view 
of  the  law  to  that  expressed  by  the  state  court? 

In  cases  too  numerous  to  be  here  cited  the  general  sub- 
ject suggested  by  these  questions  has  been  considered  by  this 
court.  It  will  be  both  unnecessary  and  impracticable  to 
enter  upon  an  extended  review  of  those  cases.  They  are 
familiar  to  the  profession.  But  in  the  course  of  this  opinion 
we  will  refer  to  a  few  of  them. 

The  question  as  to  the  binding  force  of  state  decisions  re- 
ceived very  full  consideration  in  Burgess  v.  Sdigman,  107 
U.  S.  20,  33.  After  judgment  in  that  case  by  the  United 
States  Circuit  Court,  the  Supreme  Court  of  the  State  rendered 
two  judgments,  each  of  which  was  adverse  to  the  grounds 
upon  which  the  Circuit  Court  had  proceeded,  and  the  con- 


358  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

tention  was  that  this  court  should  follow  those  decisions  of 
the  state  court  and  reverse  the  judgment  of  the  Circuit  C!ourt. 
The  opinion  in  that  case  states  that  in  order  to  avoid  mis- 
apprehension the  court  had  given  the  subject  special  con- 
sideration, and  the  extended  note  at  the  close  of  that  opinion 
shows  that  the  prior  cases  were  all  closely  scrutinized  by  the 
eminent  Justice  who  wrote  the  opinion.  A  conclusion  was 
reached  that  received  the  approval  of  all  the  members  of  the 
court.    We  place  in  the  margin  ^  an  extract  from  the  opinion 

^  ''We  do  not  consider  ourselves  bound  to  follow  the  decision  of 
the  state  court  in  this  case.  When  the  transactions  in  controversy 
occurred,  and  when  the  case  was  under  the  consideration  of  the  Cir- 
cuit Court,  no  construction  of  the  statute  had  been  given  by  the  state 
tribunals  contrary  to  that  given  by  the  Circuit  Court.  The  Federal 
courts  have  an  independent  jurisdiction  in  the  administration  of 
state  laws,  coordinate  with,  and  not  subordinate  to,  that  of  the  state 
courts,  and  are  boimd  to  exercise  their  own  judgment  as  to  the  mean- 
ing and  effect  of  those  laws.  The  existence  of  two  coordinate  juris- 
dictions in  the  same  territory  is  peculiar,  and  the  results  would  be 
anomalous  and  inconvenient  but  for  the  exercise  of  mutual  respect 
and  deference.  Since  the  ordinary  administration  of  the  law  is  carried 
on  by  the  state  courts,  it  necessarily  happens  that  by  the  course  of 
their  decisions  certain  rules  are  established  which  become  rules  of 
property  and  action  in  the  State,  and  have  all  the  effect  of  law,  and 
which  it  would  be  wrong  to  disturb.  This  is  especially  true  with  r^ard 
to  the  law  of  real  estate  and  the  construction  of  state  constitutions 
and  statutes.  Such  established  rules  are  always  regarded  by  the 
Federal  courts,  no  less  than  by  the  state  courts  themselves,  as  au- 
thoritative declarations  of  what  the  law  is.  But  where  the  law  has 
not  been  thus  settled,  it  is  the  right  and  duty  of  the  Federal  courts  to 
exercise  their  own  judgment;  as  they  also  always  do  in  reference  to 
the  doctrines  of  commercial  law  and  general  jurisprudence.  So  when 
contracts  and  transactions  have  been  entered  into,  and  rights  have 
accrued  thereon  under  a  particular  state  of  the  decisions,  or  when  there 
has  been  no  decisionj  of  the  stale  tribunalSf  the  Federal  courts  properly 
claim  the  right  to  adopt  their  own  interpretation  of  the  law  applicable 
to  the  case,  although  a  different  interpretation  may  be  adopted  by  the 
state  courts  after  such  rights  have  accrued.  But  even  in  such  cases, 
for  the  sake  of  harmony  and  to  avoid  confusion,  the  Federal  courts 
will  lean  towards  an  agreenxnt  of  views  with  the  state  courts  if  the 


KUHN  V,  FAIRMONT  COAL  CO.  359 

215  U.  S.  Opinion  of  the  Court. 

of  Mr.  Justice  Bradley.  In  Bucher  v.  Cheshire  Railroad  Co., 
125  U.  S.  555,  584,  Mr.  Justice  Miller,  speaking  for  the  court, 
observed  (p.  584):  "It  may  be  said  generally  that  wherever 
the  decisions  of  the  state  courts  relate  to  some  law  of  a  local 
character,  which  may  have  become  established  by  those 
courts,  or  has  always  been  a  part  of  the  law  of  the  State, 
that  the  decisions  upon  the  subject  are  usually  conclusive, 
and  always  entitled  to  the  highest  respect  of  the  Federal 
courts.  The  whole  of  this  subject  has  recently  been  very 
ably  reviewed  in  the  case  of  Burgess  v.  Seligman,  107  U.  S. 
20.  Where  such  local  law  or  custom  has  been  established  by 
repeated  decisions  of  the  highest  courts  of  a  State  it  becomes 
also  the  law  governing  the  courts  of  the  United  States  sitting 
in  that  State."    See  also  Jackson  v.  Chew,  12  Wheat.  153. 

Up  to  the  present  time  these  principles  have  not  been 
modified  or  disregarded  by  this  court.  On  the  contrary,  they 
have  been  reaffirmed  without  substantial  qualification  in 
many  subsequent  cases,  some  of  which  are  here  cited.  East 
Alabama  Ry,  Co.  v.  Doe,  114  U.  S.  340;  Bucher  v.  Cheshire 
R,  R.  Co.,  125  U.  S.  555;  Gormley  v.  Clark,  134  U.  S.  338; 
B.  &  0.  R.  R.  Co.  V.  Baugh,  149  U.  S.  368;  Folsom  v.  Ninety- 
six,  159  U.  S.  611;  Barber  v.  Pittsburg  &c.  Ry.,  166  U.  S.  83; 
Stanley  County  v.  Coler,  190  U.  S.  437;  Julian  v.  Central  Trust 
Co.,  193  U.  S.  93;  Comm'rs  dkc.  v.  Bancroft,  203  U.  S.  112; 
Presidio  County  v.  Noel-Young  Bond  Co.,  212  U.  S.  58. 


question  seems  to  them  balanced  with  doubt.  Acting  on  these  prin- 
ciples, founded  as  they  are  on  comity  and  good  sense,  the  courts  of 
the  United  States,  without  sacrificing  their  own  dignity  as  independent 
tribunals,  endeavor  to  avoid,  and  in  most  cases  do  avoid,  any  un- 
seemly conflict  with  the  well-considered  decisions  of  the  state  courts. 
As,  however,  the  very  object  of  giving  to  the  national  courts  juris- 
diction to  administer  the  laws  of  the  States  in  controversies  between 
citizens  of  different  States  was  to  institute  independent  tribunals 
which  it  might  be  supposed  would  be  unaffected  by  local  prejudices 
and  sectional  views,  it  would  be  a  dereliction  of  their  duty  not  to 
exercise  an  independent  judgment  in  cases  not  foreclosed  by  previous 
adjudication." 


360  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  IT.  S. 

We  take  it,  then,  that  it  is  no  longer  to  be  questioned  that 
the  Federal  courts  in  detennining  cases  before  them  are  to  be 
guided  by  the  following  rules:  1.  When  administering  state 
laws  and  determining  rights  accruing  under  those  laws  the 
jurisdiction  of  the  Federal  court  is  an  independent  one,  not 
subordinate  to  but  coordinate  and  concurrent  with  the  juris- 
diction of  the  state  courts.  2.  Where,  before  the  rights  of  the 
parties  accrued^  certain  rules  relating  to  real  estate  have  been 
so  estabhshed  by  state  decisions  as  to  become  rules  of  prop- 
erty and  action  in  the  State,  those  rules  are  accepted  by  the 
Federal  court  as  authoritative  declarations  of  the  law  of  the 
State.  3.  But  where  the  law  of  the  State  has  not  been  thus 
settled,  it  is  not  only  the  right  but  the  duty  of  the  Federal 
court  to  exercise  its  own  judgment,  as  it  also  alwajrs  does 
when  the  case  before  it  depends  upon  the  doctrines  of  com- 
mercial law  and  general  jurisprudence.  4.  So,  when  con- 
tracts and  transactions  are  entered  into  and  rights  have 
accrued  under  a  particular  state  of  the  local  decisions,  or 
when  there  has  been  no  decision  by  the  state  court  on  the  particular 
question  involved,  then  the  Federal  courts  properly  claim  the 
right  to  give  effect  to  their  own  judgment  as  to  what  is  the 
law  of  the  state  applicable  to  the  case,  even  where  a  different 
view  has  been  expressed  by  the  state  court  after  the  rights 
of  parties  accrued.  But  even  in  such  cases,  for  the  sake  of 
comity  and  to  avoid  confusion,  the  Federal  court  should 
always  lean  to  an  agreement  with  the  state  court  if  the  ques- 
tion is  balanced  with  doubt. 

The  court  took  care,  in  Burgess  v.  Sdigman,  to  say  that  the 
Federal  court  would  not  only  fail  in  its  duty,  but  would 
defeat  the  object  for  which  the  national  courts  were  given 
jurisdiction  of  controversies  between  citizens  of  different 
States,  if,  while  leaning  to  an  agreement  with  the  state  court, 
it  did  not  exercise  an  independent  judgment  in  cases  involving 
principles  not  settled  by  previous  adjudications. 

It  would  seem  that  according  to  those  principles,  now 
firmly  established,  the  duty  was  upon  the  Federal  court,  in 


KUHN  V.  FAIRMONT  COAL  CO.  361 

215  U.  S.  Opinion  of  the  Court. 

the  present  case,  to  exercise  its  independent  Judgment  as  to 
what  were  the  relative  rights  and  obligations  of  the  parties 
under  their  written  contract.  The  question  before  it  was  as 
to  the  liabiUty  of  the  Coal  Company  for  an  injury  arising 
from  the  failure  of  that  corporation,  while  mining  and  taking 
out  the  coal,  to  furnish  suflBcient  support  to  the  overlying  or 
surface  land.  Whether  such  a  case  involves  a  rule  of  prop- 
erty in  any  proper  sense  of  those  terms,  or  only  a  question  of 
general  law  within  the  province  of  the  Federal  court  to  de- 
termine for  itself,  the  fact  exists  that  there  had  been  no 
determination  of  the  question  by  the  state  court  before  the 
rights  of  the  parties  accrued  and  became  fixed  under  their 
contract,  or  before  the  injury  complained  of.  In  either  case, 
the  Federal  court  was  bound  under  established  doctrines  to 
exercise  its  own  independent  judgment,  with  a  leaning,  how- 
ever, as  just  suggested,  for  the  sake  of  harmony,  to  an  agree- 
ment with  the  state  court,  if  the  question  of  law  involved 
was  deemed  to  be  doubtful.  If,  before  the  rights  of  the 
parties  in  this  case  were  fixed  by  written  contract,  it  had 
become  a  settled  rule  of  law  in  West  Virginia,  as  manifested 
by  decisions  of  its  highest  court,  that  the  grantee  or  his  suc- 
cessors in  such  a  deed  as  is  here  involved,  was  under  no  legal 
obligation  to  guard  the  surface  land  of  the  grantor  against 
injury  resulting  from  the  mining  and  removal  of  the  coal 
purchased,  a  wholly  different  question  would  have  been 
presented. 

There  are  adjudged  cases  involving  the  meaning  of  written 
contracts  having  more  or  less  connection  with  land  that 
were  not  regarded  as  involving  a  rule  in  the  law  of  real  estate, 
but  as  only  presenting  questions  of  general  law  touching 
which  the  Federal  courts  have  always  exercised  their  own 
judgment,  and  in  respect  to  which  they  are  not  bound  to 
accept  the  views  of  the  state  courts.  Lot  us  look  at  some  of 
those  cases.  They  may  throw  light  upon  the  present  discus- 
sion. 

In  Chicago  City  v.  Robhins,  2  Black,  418,  428,  which  was 


362  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

an  action  on  the  case  for  damages,  the  question  was  as  to 
the  right  of  the  city  of  Chicago — which  was  under  a  duty  to 
see  that  its  streets  were  kept  in  safe  condition  for  persons  and 
property — ^to  hold  one  Robbins  liable  in  damages  for  so  using 
his  lot  on  a  public  street  as  to  cause  injury  to  a  passer-by. 
The  city  was  held  liable  to  the  latter  and  sued  Robbins  on 
that  account.  The  state  court,  in  a  similar  case,  decided  for 
the  defendant,  and  it  was  contended  that  the  Federal  court 
should  accept  the  views  of  the  local  court  as  to  the  legal  rights 
of  the  parties.  But  this  court,  speaking  by  Mr.  Justice  Davis, 
said:  "Where  rules  of  property  in  a  State  are  fully  settled  by 
a  series  of  adjudications,  this  court  adopts  the  decisions  of 
the  state  courts.  But  where  private  rights  are  to  be  deter- 
mined by  the  application  of  common-law  rules  alone,  this 
court,  although  entertaining  for  state  tribunals  the  highest 
respect,  does  not  feel  bound  by  their  decisions." 

In  Lane  v.  Vick,  3  How.  464,  472,  476,  the  nature  of  the 
controversy  was  such  as  to  require  a  construction  of  a  will 
which,  among  other  property,  devised  certain  real  estate 
which,  at  the  time  of  suit,  was  within  the  limits  of  Vicksburg, 
Mississippi.  There  had  been  a  construction  of  the  will  by  the 
Supreme  Court  of  the  State,  1  How.  (Miss.)  379,  and  that 
construction,  it  was  insisted,  was  binding  on  the  Federal 
court.  But  this  court  said:  "Every  instrument  of  writing 
should  be  so  construed  as  to  efifectuate,  if  practicable,  the 
intention  of  the  parties  to  it.  This  principle  applies  with 
peculiar  force  to  a  will.  .  .  .  The  parties  in  that  case 
were  not  the  same  as  those  now  before  this  court;  and  that 
decision  does  not  aflfect  the  interests  of  the  complainants 
here.  The  question  before  the  Mississippi  court  was,  whether 
certain  grounds,  within  the  town  plat,  had  been  dedicated  to 
public  use.  The  construction  of  the  will  was  incidental  to  the 
main  object  of  the  suit,  and  of  course  was  not  binding  on 
any  one  claiming  under  the  will.  With  the  greatest  respect, 
it  may  be  proper  to  say,  that  this  court  does  not  follow  the 
state  courts  in  their  construction  of  a  will  or  any  other  instru- 


KUHN  V.  FAIRMONT  COAL  CO.  363 

215  U.  S.  Opinion  of  the  Court. 

ment,  as  they  do  in  the  construction  of  statutes.  Where,  as 
in  the  case  of  Jackson  v.  Chew,  12  Wheat.  167,  the  construc- 
tion of  a  will  had  been  settled  by  the  highest  courts  of  the 
State,  and  had  long  been  acquiesced  in  as  a  nUe  of  property, 
this  court  would  follow  it,  because  it  had  become  a  rule  of  property. 
The  construction  of  a  statute  by  the  Supreme  Court  of  a  State 
is  followed,  without  reference  to  the  interests  it  may  affect, 
or  the  parties  to  the  suit  in  which  its  construction  was  in- 
volved. But  the  mere  construction  of  a  will  by  a  state  court 
does  not,  as  the  construction  of  a  statute  of  the  State,  con- 
stitute a  rule  of  decision  for  the  courts  of  the  United  States. 
In  the  case  of  Smft  v.  Tyson,  16  Pet.  1,  the  effect  of  sec- 
tion 34  of  the  Judiciary  Act  of  1789,  and  the  construction  of 
instruments  by  the  state  courts,  are  considered  with  greater 
precision  than  is  found  in  some  of  the  preceding  cases  on  the 
same  subject." 

In  Foxcroft  v.  MaUeU,  4  How.  353,  379,  the  object  of  the 
action  was  to  recover  certain  land  in  Maine.  The  case  turned 
in  part  on  the  construction  to  be  given  to  a  mortgage  of 
certain  land  to  Williams  College,  and  to  local  adjudications 
relating  to  those  lands,  which,  it  was  contended,  were  con- 
clusive on  the  parties.  "But,''  this  court  said,  "on  examin- 
ing the  particulars  of  the  cases  cited  to  govern  this  (3  Fair- 
field, 398;  4  Shepley,  84,  88;  14  Maine  R.  51),  it  will  be  seen 
that  the  construction  of  the  mortgage  to  the  college,  in 
respect  to  this  reservation  or  condition,  never  appears  to 
have  been  agitated.  //  it  had  been,  the  decision  would  be 
entitled  to  high  respect,  though  it  should  not  be  regarded  as 
conclusive  on  the  mere  construction  of  a  deed  as  to  matters 
and  language  belonging  to  the  common  law,  and  not  to  any 
local  statute.    3  Sumner,  136,  277." 

In  Russell  v.  Southard,  12  How.  139,  147,  the  controlling 
question  was  whether  in  any  case  it  was  admissible  to  show 
by  extraneous  evidence  that  a  deed  on  its  face  of  certain  real 
estate  in  Kentucky  was  really  intended  by  the  parties  as  a 
security  for  a  loan  and  as  a  mortgage.    The  court,  speaking 


364  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

by  Mr.  Justice  Curtis,  after  citing  adjudged  cases  sustaining 
the  proposition  that  evidence  of  that  kind  was  admissible  in 
certain  States,  said:  "It  is  suggested  that  a  dififerent  rule  is 
held  by  the  highest  court  of  equity  in  Kentucky.  If  it  were, 
with  great  respect  for  that  learned  court,  this  court  would  not 
feel  bound  thereby.  This  being  a  suit  in  equity,  and  oral 
evidence  being  admitted,  or  rejected,  not  by  the  mere  force 
of  any  state  statute,  but  upon  the  principles  of  general  equity 
jurisprudence,  this  court  must  be  governed  by  its  own  views 
of  those  principles" — citing  Robinson  v.  Campbell,  3  Wheat. 
212;  United  States  v.  Rowland,  4  Wheat.  108;  Boyle  v.  Zacharie 
6  Pet.  635,  658;  Smift  v.  Tyson,  16  Pet.  1;  Foxcroft  v.  Mah- 
leU,  4  How.  353,  379. 

In  Yates  v.  MUwavkee,  10  Wall.  497,  506,  the  question  was 
as  to  the  nature  and  extent  of  the  right  of  an  owner  of  land 
in  Wisconsin,  bordering  on  a  public  navigable  water,  to  make 
a  landing,  wharf  or  pier  for  his  own  use  or  for  the  use  of  the 
public.  There  was  a  question  in  the  case  of  dedication  to 
public  use,  and  the  city  of  Milwaukee  sought  to  change  or 
remove  the  wharf  erected  by  the  riparian  owner  in  front  of 
his  lot.  This  court,  sf)eaking  by  Mr.  Justice  Miller,  said: 
"This  question  of  dedication,  on  which  the  whole  of  that  case 
turned,  was  one  of  fact,  to  be  determined  by  ascertaining  the 
intention  of  those  who  laid  out  the  lots,  from  what  they  did, 
and  from  the  application  of  general  common  law  principles 
to  their  acts.  This  does  not  depend  upon  state  statute  or 
local  state  law.  The  law  which  governs  the  case  is  the  com- 
mon law,  on  which  this  court  has  never  acknowledged  the 
right  of  the  state  courts  to  control  our  decisions,  except, 
perhaps,  in  a  class  of  cases  where  the  state  courts  have  estab- 
lished, by  repeated  deciMons,  a  rule  of  property  in  regard  to 
land  titles  peculiar  to  the  State." 

In  Louisville  Trust  Co.  v.  City  of  Cincinnati,  76  Fed.  Rep. 
296,  300,  304,  which  was  a  suit  by  a  Kentucky  corporation, 
it  became  necessary  to  determine  the  force  and  effect  of  a 
mortgage  originating  in  a  state  statute  of  Ohio  and  certain 


KUHN  V.  FAIRMONT  COAL  CO.  365 

215  U.  S.  Opinion  of  the  Court. 

municipal  ordinances  covering  street  easements  in  Cincinnati. 
The  state  court,  in  a  suit  to  which  the  trustee  in  the  mortgage 
was  not  a  party,  passed  a  decree  declaring  the  scope,  efifect 
and  duration  of  contracts  or  ordinances  under  which  the 
mortgage,  easements  and  franchises  originated.  It  was  in- 
sisted that  the  Federal  court  was  bound  to  accept  the  views 
of  the  state  court.  But  the  Circuit  Court  of  Appeals,  held 
by  Judges  Taft,  Lurton,  and  Hammond,  ruled  otherwise. 
Judge  Lurton,  speaking  for  all  the  members  of  that  court, 
made  an  extended  review  of  the  authorities,  and  observed 
that  if  the  state  decision  was  regarded  as  conclusive  upon  the 
parties,  *'the  constitutional  right  of  the  complainant,  as  a 
citizen  of  a  State  other  than  Ohio,  to  have  its  rights  as  a 
mortgagee  defined  and  adjudged  by  a  court  of  the  United 
States  is  of  no  real  value.  If  this  court  cannot  for  itself 
examine  these  street  contracts  and  determine  their  validity, 
effect,  and  duration,  and  must  follow  the  interpretation  and 
construction  placed  on  them  by  another  court  in  a  suit  begun 
after  its  rights  as  mortgagee  had  accrued,  and  to  which  it  was 
not  a  party  J  then  the  right  of  such  a  mortgagee  to  have  a 
hearing  before  judgment  and  a  trial  before  execution  is  a 
matter  of  form  without  substance.  The  better  forum  for  a 
suitor  so  situated  would  be  a  court  of  the  State.  .  .  .  The 
validity,  effect,  and  duration  of  the  street  easements  granted 
or  claimed  under  these  laws  and  ordinances  is  a  question 
which  this  complainant  is  entitled  to  have  decided  by  the 
courts  of  the  United  States,  and  the  opinion  of  the  Supreme 
Court  of  Ohio,  while  entitled  to  the  highest  respect  as  a 
tribunal  of  exalted  ability,  can  be  given  no  greater  weight  or 
respect  than  its  reasoning  shall  demand,  where  the  contract 
rights  of  a  citizen  of  another  State  are  involved,  who  was 
neither  a  party  nor  privy  to  the  suit  in  which  that  opinion 
was  delivered.  The  special  fact,  therefore,  which  justifies  us 
in  determining  for  ourselves  the  true  meaning  and  validity  of 
the  Ohio  statutes  and  city  ordinances,  out  of  which  the  rights 
of  this  complainant  spring,  is  the  fact  that  it  is  a  citizen  of 


' 


366  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

another  State,  and  that  the  contract  under  which  it  has  ac- 
quired an  interest  originated  prior  to  the  judicial  opinion 
relied  upon  as  foreclosing  our  judgment." 

Upon  the  general  question  as  to  the  duty  of  the  Federal 
court  to  exercise  its  independent  judgment  where  there  had 
not  been  a  decision  of  the  state  court,  on  the  question  in- 
volved, before  the  rights  of  the  parties  accrued,  Carroll 
County  V.  Smith,  111  U.  S.  556,  and  Great  Southern  Hotd  Co. 
V.  Jones,  193  U.  S.  532,  548,  are  pertinent.  In  the  first-named 
case  the  court  was  confronted  with  a  question  as  to  the 
validity  under  the  state  constitution  of  a  certain  statute  of 
the  State.  Mr.  Justice  Matthews,  delivering  the  unanimous 
judgment  of  the  court,  said  (p.  563):  "It  was  not  a  rule 
previously  established,  so  as  to  have  become  recognized  as 
settled  law,  and  which,  of  course,  all  parties  to  transactions 
afterwards  entered  into  would  be  presumed  to  know  and  to 
conform  to.  \\'hen,  therefore,  it  is  presented  for  application 
by  the  courts  of  the  United  States,  in  a  litigation  growing  out 
of  the  same  facts,  of  which  they  have  jurisdiction  by  reason 
of  the  citizenship  of  the  parties,  the  plaintiff  has  a  right, 
under  the  Constitution  of  the  United  States,  to  the  inde- 
pendent judgment  of  those  courts,  to  determine  for  them- 
selves what  is  the  law  of  the  State,  by  which  his  rights  are 
fixed  and  governed.  It  was  to  that  very  end  that  the  Con- 
stitution granted  to  citizens  of  one  State,  suing  in  another, 
the  choice  of  resorting  to  a  Federal  tribunal.  Burgess  v. 
Sdigman,  107  U.  S.  20,  33."  The  other  case— Grea^  Southern 
Hotel  Co.  V.  Jones — presented  a  controversy  between  citizens 
of  different  States.  It  was  sought  by  the  plaintiffs,  citizens 
of  Pennsylvania,  to  enforce  a  mechanics^  lien  upon  certain  real 
property  in  Ohio.  The  main  question  was  as  to  the  validity 
of  a  statute  of  Ohio  under  which  the  alleged  hen  arose.  It 
was  contended  that  a  particular  decision  of  the  state  court 
holding  the  statute  to  be  a  violation  of  the  state  constitution 
was  conclusive  upon  the  Federal  court.  But  this  court,  fol- 
lowing the  rules  announced  in  Burgess  v.  Selignumj  rejected 


KUHN  V.  FAIRMONT  GOAL  CO.  367 

215  n.  S.  Opinion  of  the  Court. 

that  view  by  a  unanimous  vote.  It  said  (p.  548) :  "  If,  prior 
to  the  making  of  the  contracts  between  the  plaintiffs  and  McClain, 
the  state  court  had  adjudged  that  the  statute  in  question 
was  in  violation  of  the  state  constitution,  it  would  have  been 
the  duty  of  the  Circuit  Court,  and  equally  the  duty  of  this 
court,  whatever  the  opinion  of  either  court  as  to  the  proper 
construction  of  that  instrument,  to  accept  such  prior  decision 
as  determining  the  rights  of  the  parties  accruing  thereafter. 
But  the  decision  of  the  state  court,  as  to  the  constitutionality 
of  the  statute  in  question,  having  been  rendered  after  the 
rights  of  parties  to  this  suit  had  been  fixed  by  their  contracts,  the 
Circuit  Court  would  have  been  derelict  in  duty  if  it  had  not 
exercised  its  independent  judgment  touching  the  vaUdity  of 
the  statute  here  in  question.  In  making  this  declaration  we 
must  not  be  understood  as  at  all  qualifying  the  principle 
that,  in  all  cases,  it  is  the  duty  of  the  Federal  court  to  lean 
to  an  agreement  with  the  state  court,  where  the  issue  relates 
to  matters  depending  upon  the  construction  of  the  constitu- 
tion or  laws  of  the  State." 

It  has  been  suggested — and  the  suggestion  cannot  be  passed 
without  notice — ^that  the  views  we  have  expressed  herein  are 
not  in  harmony  with  some  recent  utterances  of  this  court, 
and  we  are  referred  to  Ea^t  Cent.  E.  M.  Co.  v.  Central  Eureka 
Co,,  204  U.  S.  266,  272.  That  case  involved,  among  other 
questions,  the  meaning  of  a  deed  for  mining  property.  This 
court  in  its  opinion  referred  to  a  decision  of  the  state  court  as 
to  the  real  object  of  the  deed,  and  expressed  its  concurrence 
with  the  views  of  that  court.  That  was  quite  sufficient  to 
dispose  of  the  case.  But  in  the  opinion  it  was  further  said 
(p.  272):  "The  construction  and  effect  of  a  conveyance  be- 
tween private  parties  is  a  matter  as  to  which  we  follow  the 
court  of  the  State" — citing  Brine  v.  Insurance  Company,  96 
U.  S.  627,  636;  DeVaughn  v.  Hutchinson,  165  U.  S.  566. 
Even  if  the  broad  language  just  quoted  seems  to  give  some 
support  to  the  contention  of  the  defendant,  it  is  to  be  ob- 
served thai  no  reference  is  made  in  the  opinion  to  the  nu- 


368  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

merous  cases,  some  of  which  are  above  cited,  holding  that 
the  Federal  court  is  not  bound,  in  cases  between  citizens  of 
different  States,  to  follow  the  state  decision,  if  it  was  rendered 
after  the  date  of  the  transaction  out  of  which  the  rights  of  the 
parties  arose.  Certainly  there  was  no  purpose,  on  the  part  of 
the  court,  to  overrule  or  to  modify  the  doctrines  of  those 
cases;  and  the  broad  language  quoted  from  East  Cent.  Ac.  v. 
Central  Eureka  Co.  must  therefore  be  interpreted  in  the  light 
of  the  particular  cases  cited  to  support  the  view  which  that 
language  imports.  What  were  those  cases  and  what  did  they 
decide? 

Brine  v.  Insurance  Companyj  one  of  the  cases  cited,  was  a 
suit  in  the  Federal  Circuit  Court  to  foreclose  a  mortgage  on 
real  estate.  A  foreclosure  and  sale  were  had,  and  the  decree, 
following  the  established  rules  of  the  Federal  court,  allowed 
the  defendant  to  pay  the  mortgage  debt  in  one  hundred  days; 
and  if  the  debt  was  not  paid  within  that  time,  then  the  mas- 
ter was  ordered  to  sell  the  land  for  cash  in  accordance  with 
the  course  and  practice  of  the  Federal  court.  When  the  mort- 
gage was  made  there  was  in  force  in  Illinois  and  had  been  for 
many  years,  a  statute  which,  if  controlling,  allowed  the  de- 
fendant, in  a  foreclosure  suit,  twelve  months  after  sale  to  re- 
deem the  land  sold.  Thus,  there  was  a  conflict  between  the 
local  statute  and  the  rules  and  practice  obtaining  in  the  Fed- 
eral court,  and  the  question  was  whether  the  state  statute  or 
those  rules  governed  the  rights  of  the  parties  as  to  the  time 
of  redemption.  This  court  held  that  the  statute  of  the  State, 
being  in  force  when  the  mortgage  in  question  was  executedy  en- 
tered into  the  contract  between  the  parties  and  must  control 
the  determination  of  their  rights.  Speaking  by  Mr.  Justice 
Miller,  it  said  (p.  636):  "The  legislature  of  Illinois  has  pre- 
scribed, as  an  essential  element  of  the  transfer  by  the  courts  in 
foreclosure  suits,  that  there  shall  remain  to  the  mortgagor  the 
right  of  redemption  for  twelve  months,  and  to  judgment  credi- 
tors a  similar  right  for  fifteen  months,  after  the  sale,  before 
the  right  of  the  purchaser  to  the  title  becomes  vested.     This 


KUHN  V.  FAIRMONT  COAL  CO.  369 

215  U.  S.  Opinion  of  the  Court. 

right,  as  a  condition  on  which  the  title  passes,  is  as  obligatory 
on  the  Federal  courts  as  on  the  state  courts,  because  in  both 
cases  it  is  made  a  rule  of  property  by  the  legislature,  which  had 
the  power  to  prescribe  such  a  rule.  ...  At  all  events,  the 
decisions  of  this  court  are  numerous  that  the  laws  which  pre- 
scribe the  mode  of  enforcing  a  contract,  which  are  in  existence 
when  it  is  made,  are  so  far  a  part  of  the  contract  that  no  change 
in  these  laws  which  seriously  interfere  with  that  enforcement 
are  valid,  because  they  impair  its  obligation  within  the  mean- 
ing of  the  Constitution  of  the  United  States.  Edwards  v. 
Kearzey,  96  U.  S.  595.  That  this  very  right  of  redemption, 
after  a  sale  under  a  decree  of  foreclosure,  is  a  part  of  the  con- 
tract of  mortgage,  where  the  law  giving  the  right  exists  when 
the  contract  is  made,  is  very  clearly  stated  by  Mr.  Chief  Jus- 
tice Taney,  in  the  case  of  Branson  v.  Kimie,  1  How.  311." 
DeVaughn  v.  HiUchinsonj  165  U.  S.  566,  the  other  case  cited, 
involved  the  construction  of  a  will  made  in  1867  devising  real 
estate  in  the  District  of  Columbia,  and  the  decision  was  based 
upon  the  law  of  Maryland  as  it  had  been  often  declared  by 
the  courts  of  Maryland  to  be  while  this  District  was  part  of 
that  State — ^indeed,  as  it  was  from  the  time  Maryland  became 
an  independent  State. 

It  thus  appears  that  in  the  Brine  case  the  rights  of  the  par- 
ties were  determined  in  conformity  with  a  valid  local  statute 
in  force  when  those  rights  accrued;  while  in  the  DeVaughn  case, 
the  decision  was  based  upon  the  law  of  Maryland,  while  the 
District  was  a  part  of  that  State,  evidenced  by  a  series  of  de- 
cisions made  by  the  highest  court  of  Maryland,  before  the 
rights  of  parties  accrued.  Nothing  in  this  opinion  is  opposed 
to  anything  said  or  decided  in  either  of  those  cases.  The 
question  here  involved  as  to  the  scope  and  effect  of  the  writ- 
ing given  by  Kuhn  to  Camden  does  not  depend  upon  any 
statute  of  West  Virginia,  nor  upon  any  rule  established  by  a 
course  of  decisions  made  before  the  rights  of  parties  accrued. 
So  that  the  words  above  quoted  from  East  Central  &c.  v. 
Central  Eureka  Co,  must  not  be  interpreted  as  applicable  to 
VOL.  ccxv— 24 


370  OCTOBER  TERM,  1909. 

Holmes,  White  and  McKenna,  JJ.,  diflsenting.       215  U.  S. 

a  case  like  the  one  before  us,  nor  as  denying  the  authority 
and  duty  of  the  Federal  court,  when  determining  the  effect 
of  conveyances  or  written  instruments  between  private  par- 
ties, citizens  of  different  States,  to  exercise  its  own  inde- 
pendent judgment  where  no  authoritative  state  decision  had 
been  rendered  by  the  state  court  before  the  rights  of  the  par- 
ties accrued  and  became  fixed. 

Without  expressing  any  opinion  as  to  the  rights  of  the  par- 
ties under  their  contract,  we  need  only  say  that,  for  the 
reasons  stated,  the  question  sent  to  this  court  by  the  Circuit 
Court  of  Appeals  is  answered  in  the  negative.  It  will  be  so 
certified. 

Mr.  Justice  Holmes,  with  whom  concurred  Mr.  Justice 
White  and  Mr.  Justice  McKenna,  dissenting. 

This  is  a  question  of  the  title  to  real  estate.  It  does  not 
matter  in  what  form  of  action  it  arises;  the  decision  must  be 
the  same  in  an  action  of  tort  that  it  would  be  in  a  writ  of 
right. — ^The  title  to  real  estate  in  general  depends  upon  the 
statutes  and  decisions  of  the  State  within  which  it  lies.  I 
think  it  a  thing  to  be  regretted  if,  while  in  the  great  mass  of 
cases  the  state  courts  finally  determine  who  is  the  owner  of 
land,  how  much  he  owns  and  what  he  conveys  by  his  deed, 
the  courts  of  the  United  States,  when  by  accident  and  ex- 
ception the  same  question  comes  before  them,  do  not  follow 
what  for  all  ordinary  purposes  is  the  law. 

I  admit  that  plenty  of  language  can  be  found  in  the  earlier 
cases  to  support  the  present  decision.  That  is  not  surprising 
in  view  of  the  uncertainty  and  vacillation  of  the  theory  upon 
which  Swift  v.  Tyson,  16  Pet.  1,  and  the  later  extensions  of 
its  doctrine  have  proceeded.  But  I  suppose  it  will  be  ad- 
mitted on  the  other  side  that  even  the  independent  jurisdic- 
tion of  the  Circuit  Courts  of  the  United  States  is  a  jurisdic- 
tion only  to  declare  the  law,  at  least  in  a  case  like  the  present, 
and  only  to  declare  the  law  of  the  State.  It  is  not  an  au- 
thority to  make  it.   Swift  v.  Tyson  was  justified  on  the  ground 


KUHN  V.  FAIRMONT  COAL  CO.  371 

315  U.  S.         Holmes,  White  and  McKenna,  J  J.,  dissenting. 

that  that  was  all  that  the  state  courts  did.  But  as  has  been 
pointed  out  by  a  recent  accomplished  and  able  writer,  that 
fiction  had  to  be  abandoned  and  was  abandoned  when  this 
court  came  to  decide  the  municipal  bond  cases,  beginning 
with  Gdpcke  v.  Dvbuqae^  1  Wall.  175.  Gray,  Nature  and 
Sources  of  the  Law,  §§535-550.  In  those  cases  the  court  fol- 
lowed Chief  Justice  Taney  in  Ohio  Life  Ins.  &  Trust  Co.  v. 
Dd>olt,  16  How.  416,  in  recognizing  the  fact  that  decisions  of 
state  courts  of  last  resort  make  law  for  the  State.  The  prin- 
ciple is  that  a  change  of  judicial  decision  after  a  contract  has 
been  made  on  the  faith  of  an  earlier  one  the  other  way  is  a 
change  of  the  law. 

The  cases  of  the  class  to  which  I  refer  have  not  stood  on 
the  ground  that  this  court  agreed  with  the  first  decision,  but 
on  the  ground  that  the  state  decision  made  the  law  for  the 
State,  and  therefore  should  be  given  only  a  prospective  op- 
eration when  contracts  had  been  entered  into  under  the  law 
as  earlier  declared.  Douglass  v.  Pike  County,  101  U.  S.  677. 
Green  County  v.  Conness,  109  U.  S.  104.  In  various  instances 
this  court  has  changed  its  decision  or  rendered  different  de- 
cisions on  similar  facts  arising  in  different  States  in  order  to 
conform  to  what  is  recognized  as  the  local  law.  Fairfield  v. 
Gallatin  County,  100  U.  S.  47. 

Whether  Sidft  v.  Tyson  can  be  reconciled  with  Gelpcke  v. 
Dubuque,  I  do  not  care  to  enquire.  I  assume  both  cases 
to  represent  settled  doctrines,  whether  reconcilable  or  not. 
But  the  moment  you  leave  those  principles  which  it  is  de- 
sirable to  make  uniform  throughout  the  United  States  and 
which  the  decisions  of  this  court  tend  to  make  uniform,  ob- 
viously it  is  most  undesirable  for  the  courts  of  the  United 
States  to  appear  as  interjecting  an  occasional  arbitrary  ex- 
ception to  a  rule  that  in  every  other  case  prevails.  I  never 
yet  have  heard  a  statement  of  any  reason  justifying  the  power, 
and  I  find  it  hard  to  imagine  one.  The  rule  in  Gelpcke  v. 
Dubuque  gives  no  help  when  the  contract  or  grant  in  question 
has  not  been  made  on  the  faith  of  a  previous  declaration  of 


372  OCTOBER  TERM,  1909. 

H0LMB8,  White  and  McKenna,  J  J.,  diasentiiig.       215  U.  S. 

law.  I  know  of  no  authority  in  this  court  to  say  that  in  gen- 
eral state  decisions  shall  make  law  only  for  the  future.  Ju- 
dicial decisions  have  had  retrospective  operation  for  near  a 
thousand  years.  There  were  enough  difficulties  in  the  way, 
even  in  cases  like  Gdpcke  v.  Dubuque,  but  in  them  there  was  a 
suggestion  or  smack  of  constitutional  right.  Here  there  is 
nothing  of  that  sort.  It  is  said  that  we  must  exercise  our 
independent  judgment — but  as  to  what?  Surely  as  to  the 
law  of  the  States.  Whence  does  that  law  issue?  Certainly 
not  from  us.  But  it  does  issue  and  has  been  recognized  by 
this  court  as  issuing  from  the  state  courts  as  well  as  from  the 
state  legislatures.  When  we  know  what  the  source  of  the  law 
has  said  that  it  shall  be,  our  authority  is  at  an  end.  The  law 
of  a  State  does  not  become  something  outside  of  the  state 
court  and  independent  of  it  by  being  called  the  common  law. 
Whatever  it  is  called  it  is  the  law  as  declared  by  the  state 
judges  and  nothing  else. 

If,  as  I  believe,  my  reasoning  is  correct,  it  justifies  our 
stopping  when  we  come  to  a  kind  of  case  that  by  nature  and 
necessity  is  peculiarly  local,  and  one  as  to  which  the  latest 
intimations  and  indeed  decisions  of  this  court  are  wholly  in 
accord  with  what  I  think  to  be  sound  law.  I  refer  to  the  lan- 
guage of  the  court  speaking  through  Mr.  Justice  Miller  in 
Brine  v.  Hartford  Fire  Insurance  Co.,  96  U.  S.  627.  To  ad- 
minister a  different  law  (p.  635)  is  "to  introduce  into  the 
jurisprudence  of  the  State  of  Illinois  the  discordant  elements 
of  a  substantial  right  which  is  protected  in  one  set  of  courts 
and  denied  in  the  other,  with  no  superior  to  decide  which  is 
right."  I  refer  also  to  the  unanimous  decision  in  East  Central 
Eureka  Mining  Co.  v.  Central  Eureka  Mining  Co.,  204  U.  S. 
266, 272.  It  is  admitted  that  we  are  bound  by  a  settled  course 
of  decisions,  irrespective  of  contract,  because  they  make  the 
law.    I  see  no  reason  why  we  are  less  bound  by  a  single  one. 

Mr.  Justice  Whttb  and  Mb.  Jxxbtice  McEsnna  concur  in 
this  dissent. 


HENLEY  V.  MYERS.  373 

216  U.  S.  Argument  for  Plaintiffs  in  Error. 


HENLEY  V.  MYERS,  RECEIVER  OF  CONSOLIDATED 

BARB  WIRE  COMPANY. 

ERROR  TO  THE   SUPREME   COURT   OF  THE   STATE   OF   KANSAS. 
No.  72.    Submitted  December  10,  1909.— Decided  January  3,  1910. 

The  State  creating  a  corporation  may  determine  how  transfers  of  its 
stock  shall  be  made  and  evidenced,  and  a  change  in  the  law  imposing 
no  restraint  upon  the  transfer,  but  only  affecting  the  method  of 
procedure,  does  not  impair  the  obligation  of  the  charter  contract 
within  the  meaning  of  the  contract  clause  of  the  Federal  Constitu- 
tion; and  so  held  that  the  corporation  law  of  Kansas  of  1899  is  not 
void  as  to  stockholders  who  purchased  stock  prior  thereto  and  sold 
it  thereafter,  because  it  required  a  statement  of  the  transfer  of  stock 
to  be  filed  in  the  office  of  the  Secretary  of  State  in  order  to  relieve 
the  transferor  of  stockholder's  liability,  the  act  not  depriving  him 
of  any  defense  that  might  be  made  at  the  time  the  stock  was 
acquired. 

Methods  of  procedure  in  actions  on  contract  that  do  not  affect  sub- 
stantial  rights  of  parties  are  within  the  control  of  the  State,  and 
the  obligation  of  a  stockholder's  contract  is  not  impaired  within 
the  meaning  of  the  contract  clause  of  the  Federal  Constitution  by 
substituting  for  individual  actions  for  statutory  liability  a  suit  in 
equity  by  the  receiver  of  the  insolvent  corporation;  and  so  held 
as  to  the  corporation  law  of  Kansas  of  1899  amending  prior  laws  to 
that  effect. 

In  becoming  a  stockholder  of  a  corporation  one  does  not  acqiiire  as 
against  the  State  a  vested  right  in  any  particular  mode  of  procedure 
for  enforcement  of  liability,  but  it  is  assumed  that  parties  make  their 
contracts  with  reference  to  the  existence  of  the  power  in  the  State 
to  r^ulate  such  procedure. 

The  facts  are  stated  in  the  opinion. 

Mr.  W,  W.  Nevison,  Mr.  George  J.  Barker,  Mr.  A.  0.  Mitch- 
ell and  Mr.  S.  D.  Bishop  for  plaintiffs  in  error: 
The  liability  of  stockholders  for  an  additional  amount 


374  OCTOBER  TERM,  1909. 

Argument  for  Plaintiffs  in  Error.  216  U.  8. 

equal  to  the  stock  owned  by  them,  although  statutory,  is 
contractual  in  its  nature,  and  therefore  within  the  protection 
of  Art.  I,  §  10,  of  the  Federal  Constitution.  Whitman  v. 
Oxford  National  Bank,  176  U.  S.  559;  Woodworth  v.  Bowles, 
61  Kansas,  569.  And  see  also  Howell  v.  Manglesdorf,  33 
Kansas,  194,  199;  Cooper  v.  Ives,  62  Kansas,  395,  401;  Pine 
V.  Bank,  63  Kansas,  462,  469;  Stacker  v.  Davidson,  74  Kansas, 
214,  215;  Anglo-American  Co.  v.  Lombard,  132  Fed.  Rep. 
721,  729. 

So  much  of  §  12,  ch.  10,  Laws  of  Kansas,  1898,  as  provides 
that  no  transfer  of  stock  in  a  corporation  shall  be  legal  and 
binding  until  a  statement  of  the  change  of  ownership  thereof, 
made  by  the  president  and  secretary  of  such  corporation,  is 
filed  with  the  Secretary  of  State,  is  retroactive,  impairs  the 
obligation  of  the  contracts  of  those  who  owned  stock  at  the 
time  of  its  enactment,  and  is  therefore  unconstitutional  and 
void. 

As  to  the  valid  effect  of  a  transfer  of  stock  see  Van  Demark 
V.  Barons,  52  Kansas,  779;  MerriU  v.  Meade,  6  Kans.  App. 
620;  Parkinson  v.  Siigar  Co.,  8  Kans.  App.  79;  Plumb  v.  Bank, 
48  Kansas,  484;  Bank  v.  Wylfekufder,  19  Kansas,  60, 65;  Hentig 
v.  Jamss,  22  Kansas,  326;  10  Cyc.  716;  19  Am.  &  Eng.  Ency. 
of  Law,  881. 

It  was  not  within  the  power  of  the  legislature  to  alter  this 
right  and  effect  of  transfer.  Edwards  v.  Kearzey,  96  U.  S. 
595;  3  Thompson  on  Corp.  §  2183;  Hope  Ins,  Co.  v.  Flynn,  38 
Missouri,  483;  DartmoiUh  College  Case,  4  Wheat.  518;  Walker 
V.  Whitehead,  16  Wall.  314;  Goodale  v.  Fenneli,  27  Ohio  St. 
426;  Intiso  v.  Loan  Assn.,  68  N.  J.  L.  588. 

The  portions  of  §§14  and  15  of  ch.  10,  Laws  of  Kansas, 
1898,  which  substituted  for  individual  actions  against  the 
stockholders  of  corporations  upon  their  stockholders'  liability, 
a  suit  in  equity  by  a  receiver  to  be  appointed  after  a  judgment 
against  the  corporation,  are  retroactive,  impair  the  obliga- 
tion of  the  contracts  of  not  only  the  creditors,  but  the  stock- 
holders of  a  corporation,  and  are  therefore  unconstitutional 


HENLEY  V.  MYERS.  375 

215  U.  S.  Argument  for  Plaintiffs  in  Error. 

and  void.  United  States  v.  Qymcy,  4  Wall.  535,  550;  Kendall 
V.  Fader,  99  111.  App.  104;  afif'd,  199  Mnois,  294;  3  Thomp- 
son on  Corp.,  §3035;  Evans  v.  Ndlis,  101  Fed.  Rep.  920; 
Ptisey  &  Jones  v.  Lovey  66  Atl.  Rep.  1013;  Harrison  v.  Remr 
ington  Paper  Co.,  140  Fed.  Rep.  385;  Myers  v.  Fruit  Co,, 
139  Fed.  Rep.  Ill;  Converse  v.  ^tna  Bank,  79  Connecticut, 
163;  Savings  Bank'w,  Schranck,  97  Wisconsin,  250;  Dexler  v. 
Edmonds,  89  Fed.  Rep.  467;  Western  Bank  v.  New  York,  96 
Fed.  Rep.  70. 

The  law  of  Kansas  enacted  January  11,  1899,  repealing 
§32,  ch.  23,  General  Statutes  of  Kansas  of  1868,  and  §§44 
and  46  of  ch.  23,  General  Statutes  of  Kansas  of  1868,  and 
enacting  §§14  and  15  of  ch.  10,  Laws  of  1898,  is  unconstitu- 
tional and  void  as  it  impairs  the  obligations  of  the  contracts 
of  both  the  creditor  and  stockholder. 

Section  15,  ch.  10,  Laws  of  1898,  is  unconstitutional  and 
void  as  it  impairs  the  obligation  of  the  contract  of  the  stock- 
holder by  making  his  additional  liability  an  asset  of  the 
corporation  and  diverting  the  funds  so  collected  to  sources 
which  were  not  contemplated  by  §  2,  Art.  XII,  of  the  constitu- 
tion of  the  State. 

This  court  will  not  reverse  its  own  decisions  in  order  to 
follow  the  courts  of  a  State  in  construing  the  constitution  of 
that  State,  and  it  would  have  to  do  so  in  order  to  afiirm  this 
judgment.  Rowan  v.  Runnels,  5  How.  134;  Pease  v.  Peck, 
18  How.  595;  Roberts  v.  BoUes,  101  U.  S.  119;  Mohr  v.  Ma- 
nierre,  101  U.  S.  417;  Butz  y.  Muscatine,  8  Wall.  575;  Shelby 
County  V.  Union  Bank,  161  U.  S.  149;  M.  &  0.  R.  ft.  v. 
Tennessee,  153  U.  S.  486.  See  also  Wright  v.  Nagle,  101  U.  S. 
791;  Gibson  v.  Lyon,  115  U.  S.  439;  Furman  v.  Nichol,  8 
Wall.  44;  C,  B.  &  Q.  ft.  Co.  v.  Nebraska,  170  U.  S.  57;  New 
Orleans  Waterworks  v.  Sv^ar  Refining  Co.,  125  U.  S.  18; 
Burgess  v.  Sdigman,  107  U.  S.  20;  Stanley  County  v.  Coler, 
190  U.  S.  437;  Bmirbon  County  v.  Block,  99  U.  S.  686;  Great 
Southern  Hotel  Co.  v.  Jones,  193  U.  S.  544;  Carroll  County  v. 
Smith,  111  U.  S.  556;  Anderson  v.  Santa  Ana,  116  U.  S.  356; 


376  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  Error.  215  U.  S. 

BoUes  V.  Brimfidd,  120  U.  S.  759;  Pleasant  Taumship  v.  jEtna 
Life  Ins.  Co,,  138  U.  S.  67;  Bamum  v.  OMona,  148  U.  S.  393; 
Folsom  V.  Township  Ninety-Six,  159  U.  S.  611;  Wicomico 
County  V.  Bancroft,  203  U.  S.  112;  Chicago  v.  Sheldon,  9  Wall. 
55;  Jefferson  Branch  Bank  v.  SkeUy,  1  Black,  436,  443;  L.  & 
N.  R.  R.  Co.  V.  Palmes,  109  U.  S.  257;  McGahey  v.  Virginia, 
135  U.  S.  667;  McCvMough  v.  Virginia,  172  U.  S.  109;  CUisens' 
Savings  Bank  v.  Owensboro,  173  U.  S.  637. 

The  constitutionality  of  the  law  of  1899  has  been  directly 
before  this  court  in  the  case  of  Evans  v.  NeUis,  187  U.  S.  271. 
This  court,  however,  did  not  pass  upon  the  questions  here 
involved,  for  the  reason  that  it  decided  that  there  was  no 
authority  conferred  by  the  act  of  1899  of  Kansas  from  which 
the  right  of  the  receiver  to  bring  the  suit  then  before  the 
court  could  be  deduced. 

The  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  New  York,  in  Evans  v.  NeUis,  101  Fed.  Rep.  920, 
in  an  exhaustive  opinion,  held  that  the  law  of  1899  referred 
to  was  absolutely  unconstitutional,  for  the  reason  that  it  im- 
paired not  only  the  contract  of  the  creditor,  but  also  that  of 
the  stockholder.  We  ask  this  court  to  carefully  examine 
this  decision  and  the  reasons  of  the  court  in  arriving  at  the 
conclusion  set  forth  in  said  case. 

Mr.  E.  E.  Myers  and  Mr.  R.  E.  Mdvin  for  defendant  in 
error: 

There  is  no  question  of  impairment  of  contract.  Defend- 
ants were  still  stockholders  when  the  act  of  1898  was  passed, 
and  the  Kansas  constitution  also  gave  the  right  to  amend  or 
repeal  corporation  laws.    Art.  XII,  §  1,  Const.  Kansas. 

Defendants  having  entered  into  a  contract  by  the  very 
terms  of  which  they  agreed  that  the  legislature  might  amend 
the  law  relating  to  their  liability  and  the  method  of  collecting 
same  cannot  now,  that  the  legislature  did  exactly  what  they 
contracted  it  might  do,  be  heard  to  complain.  Svmx  City  Ry. 
Co.  V.  SimLx  City,  138  U.  S.  98;  Greenwood  v.  Freight  Co.,  105 


HENLEY  V.  MYERS.  377 

216  U.  S.  Argument  for  Defendant  in  Error. 

U.  S.  13;  Miller  v.  State,  15  Wall.  478;  UnUm  Pac.  R.  R.  Co. 
V.  United  States,  99  U.  S.  700;  Railroad  Co,  v.  Georgia,  98 
U.  S.  359;  Railroad  Co.  v.  Gairies,  97  U.  S.  697;  Sinhing  Fund 
Cases,  99  U.  S.  700;  Water  Co.  v.  Clark,  143  U.  S.  1. 

There  is  no  increase  in  liability  of  stockholders. 

Both  the  legislature  and  the  people  have  power  to  change 
the  law  in  regard  to  the  liability  of  stockholders  without 
violating  any  provision  of  the  United  States  Constitution. 
Re  Empire  City  Bank,  18  N.  Y.  199;  Re  Oliver  Lee  &  CoJs 
Bank,  21  N.  Y.  9;  Re  Reciprocity  Bank,  22  N.  Y.  9;  Sleeper  v. 
Goodwin,  67  Wisconsin,  577;  S.  C,  31  N.  W.  Rep.  335;  Damant 
Co.  V.  Gray,  30  Maine,  551 ;  Ashuelot  R.  R.  v.  Elliot,  58  N.  H. 
451;  Tomlinson  v.  Jessup]  15  Wall.  454;  2  Beach,  Mod.  Law 
of  Contracts,  §  1648;  State  v.  Railway  Co.,  33  Kansas,  189. 

The  legislature  may  give  a  new  and  additional  remedy  for 
a  right  already  in  existence.  Plow  Co.  v.  Witham,  52  Kansas, 
185;  Myers  v.  Whedock,  60  Kansas,  752;  PMps  v.  Trust  Co., 
62  Kansas,  529;  Pine  v.  Bank,  63  Kansas,  468;  West  v.  Bank, 
66  Kansas,  536,  SiT  ]  Leavenworth  v.  Water  Co.,  62  Kansas,  643; 
Hill  V.  Insurance  Co.,  12  Mo.  App.  148;  afif'd,  86  Missouri, 
466;  Cooley's  Const.  Lim.  361;  HUl  v.  Insurance  Co.,  134  U.  S. 
515;  Tennessee  v.  Sneed,  96  U.  S.  69;  Bank  v.  Francklyn,  120 
U.  S.  747. 

Evans  v.  NeUis,  101  Fed.  Rep.  920,  cited  and  relied  on  by 
defendants,  was  virtually  reversed  and  overturned  by  this 
court  m  Evans  v.  NeUis,  187  U.  S.  271.  This  court  held  in 
effect  that  the  law  in  force  at  the  time  the  judgment  was 
obtained  fixed  the  rights  and  obligations  of  the  parties  and 
that  because  the  judgment  sued  on  in  that  action  was  ob- 
tained prior  to  the  passage  and  taking  effect  of  the  1898  law 
the  receiver  had  no  standing  in  court  to  maintain  the  ac- 
tion; that  the  action  must  be  brought  under  the  law  in 
force  at  the  time  the  judgment  was  obtained.  So  that  101 
Fed.  Rep.  920  is  virtually  wholly  obiter  dictum  so  far  as  any 
discussion  of  the  constitutionality  of  the  act  of  1898  is  con- 
cerned. 


378  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

* 

The  Federal  question  to  be  disposed  of  on  this  writ  of  error 
arises  under  the  contract  clause  of  the  Constitution.  The 
facts  upon  which  its  decision  depends  are  not  in  dispute  and 
may  be  thus  summarized: 

On  the  third  day  of  August,  1887,  the  plaintiffs  in  error 
became  respectively  subscribers  to  and  owners  of  capital 
stock  in  the  Consolidated  Barb  Wire  Company,  a  Kansas 
corporation,  engaged  in  the  business  of  manufacturing  wire. 
But  on  January  15,  1899,  they  sold  and  transferred  their 
stock,  worth  par,  in  good  faith,  to  responsible  parties  and 
thereafter  had  no  interest  in  the  company.  The  fact  of  such 
transfer  was  made  to  appear  on  the  books  of  the  company. 
On  the  same  date  the  company  sold  all  its  property  and  the 
good  will  of  its  business,  the  proceeds  of  the  sale  being  dis- 
tributed among  the  defendants  as  stockholders  in  the  propor- 
tion of  the  stock  held  by  each.  And  on  the  day  last  named 
the  company  suspended  and  did  not  thereafter  resume  busi- 
ness. 

In  1900  W.  H.  Stevenson  obtained  a  judgment  against  the 
company  upon  which  execution  was  issued  and  returned 
"no  property  found."  In  1903  two  other  judgments — each 
of  which,  it  is  admitted,  being  based  upon  a  cause  of  action 
sounding  in  tort — were  recovered  against  the  company,  one 
by  Briggs,  administrator,  and  one  by  Maxwell.  No  execu- 
tion was  issued  on  either  of  those  judgments. 

In  1903  Myers,  the  defendant  in  error,  was  appointed  re- 
ceiver of  the  Wire  Company.  As  such  receiver,  and  by 
authority  of  existing  statutes,  he  brought  an  action  in  one 
of  the  Kansas  courts  against  the  present  plaintiffs  in  error 
as  stockholders  to  recover  the  amount  of  the  above  judgments. 
Upon  final  hearing  the  trial  court  gave  judgments  against 
the  defendants,  respectively,  in  certain  amounts,  to  be  paid 
by  them  in  proportion  to  the  stock  owned  by  each.  The  case 
was  carried  to  the  Supreme  Court  of  Kansas,  and  the  judg- 


HENLEY  V.  MYERS.  379 

215  U.  S.  Opinion  of  the  Court. 

ment  was  aflBnned.    A  rehearing  was  granted,  but  the  judg- 
ment was  again  affirmed.    Henley  v.  Myers,  76  Kansas,  736. 

At  the  time  the  defendants  became  stockholders  in  the 
Wire  Company  certain  constitutional  and  statutory  provisions 
relating  to  corporations  were  in  force  in  Kansas.  Those 
referred  to  by  counsel  are  given,  for  convenience,  in  the 
margin.^    From  an  examination  of  those  provisions  it  will  be 

1 "  Dues  from  corporations  shall  be  secured  by  individual  liability 
of  the  stockholders  to  an  additional  amount  equal  to  the  stock  owned 
by  each  stockholder,  and  such  other  means  as  shall  be  provided  by 
Jaw;  but  such  individual  liabilities  shall  not  apply  to  railroad  corpora- 
tions, nor  corporations  for  religious  or  charitable  purposes.''  Const. 
Kansas,  Art.  12,  §  2. 

''If  any  execution  shall  have  been  issued  against  the  property  or 
effects  of  a  corporation,  except  a  railway  or  a  religious  or  charitable 
corporation,  and  there  cannot  be  found  any  property  whereon  to  levy 
such  execution,  then  execution  may  be  issued  against  any  of  the 
stockholders,  to  an  extent  equal  in  amount  to  the  amount  of  stock  by 
him  or  her  owned,  together  with  any  amount  unpaid  thereon;  but  no 
execution  shall  issue  against  any  stockholder,  except  upon  an  order 
of  the  court  in  which  the  action,  suit  or  other  proceedings  shall  have 
been  brought  or  instituted,  made  upon  motion  in  open  court,  after 
reasonable  notice  in  writing  to  the  person  or  persons  sought  to  be 
charged;  and,  upon  such  motion,  such  court  may  order  execution  to 
issue  accordingly;  or  the  plaintiff  in  the  execution  may  proceed  by 
action  to  change  the  stockholders  with  the  amount  of  his  judgment." 
Gen.  Stat.  Kans.,  1868,  c.  23,  §  3%  p.  198,  /&.,  1889,  par.  1192. 

''A  corporation  is  dissolved,  first,  by  the  expiration  of  the  time 
limited  in  its  charter,  second,  by  a  judgment  of  dissolution  rendered 
by  a  court  of  competent  jurisdiction;  but  any  such  corporation  shall 
be  deemed  to  be  dissolved  for  the  purpose  of  enabling  any  creditors 
of  such  corporation  to  prosecute  suits  against  the  stockholders  thereof 
to  enforce  their  individual  liability,  if  it  be  shown  that  such  corpora- 
tion has  suspended  business  for  more  than  one  year,  or  that  any  cor- 
poration now  so  suspended  from  business  shall  for  three  months  after 
the  passage  of  this  act  fail  to  resume  its  usual  and  ordinary  business." 
Gen.  Stat.  Kans.,  1868,  ch.  23,  §  40,  as  amended  by  laws  1883,  ch.  46, 
§  1,  March  7;  76.,  1889,  par.  1200. 

"If  any  corporation,  created  under  this  or  any  general  statute  of 
this  State,  except  railway  or  charitable  or  religious  corporations,  be 
dissolved  leaving  debts  unpaid,  suits  may  be  brought  against  any 


380  OCTOBER  TERM,  1909. 

OpinioD  of  the  Court.  216  U.  8. 

seen  that  when  the  defendants  became  the  owners  of  stock 
in  the  company  it  was  the  law  of  Kansas:   1.  That  a  stock- 

peraon  or  peraons  who  were  stockholders  at  the  time  of  such  dissolu- 
tion, without  joining  the  corporation  in  such  suit;  and  if  judgment 
be  rendered,  and  execution  satisfied,  the  defendant  or  defendants  may 
sue  all  who  were  stockholders  at  the  time  of  dissolution,  for  the  re- 
covery of  the  portion  of  such  debt  for  which  they  were  liable,  and  the 
execution  upon  the  judgment  shall  direct  the  collection  to  be  made 
from  property  of  each  stockholder  respectively;  and  if  any  number 
of  stockholders  (defendants  in  the  case)  shall  not  have  property 
enough  to  satisfy  his  or  their  portion  of  the  execution,  then  the  amount 
of  the  deficiency  shall  be  divided  equally  among  all  the  remaining 
stockholders,  and  collections  made  accordingly,  deducting  from  the 
amoimt  a  sum  in  proportion  to  the  amoimt  of  stock  owned  by  the 
plaintiff  at  the  time  the  company  dissolved."  Gen.  Stat.  Kans.,  1868, 
ch.  23,  §  44,  Oct.  31;  lb.,  1889,  par.  1204. 

"No  stockholder  shall  be  liable  to  pay  debts  of  the  corporation, 
beyond  the  amount  due  on  his  stock,  and  an  additional  amoimt  equal 
to  the  stock  owned  by  him."  Gen.  Stat.  Kans.,  1868,  c.  23,  §  46;  lb., 
1889,  par.  1206. 

By  a  statute  passed  in  1898,  which  took  effect  January  11th,  1899, 
the  foUowing  section  took  the  place  of  the  above  §  32: 

''If  any  execution  shall  have  been  issued  against  the  property  or 
effects  of  a  corporation,  except  a  railway  or  a  religious  or  charitable 
corporation,  and  there  cannot  be  foimd  any  prop)erty  upon  which  to 
levy  such  execution,  such  corporation  shall  be  deemed  to  be  insolvent; 
and  upon  application  to  the  court  from  which  said  execution  was 
issued,  or  to  the  judge  thereof,  a  receiver  shall  be  appointed,  to  close 
up  the  affairs  of  said  corporation.  Such  receiver  shall  immediately 
institute  proceedings  against  all  stockholders  to  collect  unpaid  sub- 
scriptions to  the  stock  of  such  corporation,  together  with  the  addi- 
tional liability  of  such  stockholders  equal  to  the  par  value  of  the  stock 
held  by  each.  All  collections  made  by  the  receiver  shall  be  held  for 
the  benefit  of  all  creditors,  and  shall  be  disbursed  in  such  manner  and 
at  such  times  as  the  court  may  direct.  Should  the  collections  made 
by  the  receiver  exceed  the  amount  necessary  to  pay  all  claims  against 
such  corporation,  together  with  all  costs  and  expenses  of  the  receiver- 
ship, the  remainder  shall  be  distributed  among  the  stockholders  from 
whom  collections  have  been  made,  as  the  court  may  direct;  and  in  the 
event  any  stockholder  has  not  paid  the  amount  due  from  him,  the 
stockholders  making  payment  shall  be  entitled  to  an  assignment  of 


HENLEY  V.  MYERS.  381 

215  U.  S.  Opinion  of  the  Court. 

holder  in  any  corporation  other  than  one  for  railroad,  religious 
or  charitable  purposes,  should  be  liable  for  the  dues  of  the 

any  judgment  or  judgments  obtained  by  the  receiver  against  such 
stockholder,  and  may  enforce  the  same  to  the  extent  of  his  proportion 
of  claims  paid  by  them."  Gen.  Stat.  Kans.,  1868,  ch.  23,  §  32,  as 
amended  by  L.  1898,  ch.  10,  §  14;  76.,  Gen.  Stat.  1901,  par.  1302. 

"The  stockholders  of  every  corporation,  except  railroad  corpora- 
tions or  corporations  for  religious  or  charitable  purposes,  shall  be 
liable  to  the  creditors  thereof  for  any  unpaid  subscriptions,  and  in 
addition  thereto  for  an  amount  equal  to  the  par  value  of  the  stock 
owned  by  them,  such  liability  to  be  considered  an  asset  of  the  corpora- 
tion in  the  event  of  insolvency,  and  to  be  coUected  by  a  receiver  for 
the  benefit  of  all  creditors."  Gen.  Stat.  Kans.,  1868,  ch.  23,  §  46,  as 
amended  in  1898,  ch.  10,  §  15. 

When  the  defendants  acquired  their  stock  the  statute  that  gov- 
erned the  transfer  of  stock  in  corporations  was  as  follows: 

"The  stock  of  any  corporation  created  under  this  act  shall  be 
deemed  personal  estate,  and  shall  be  transferable  only  on  the  books  of 
the  corporation,  in  such  manner  as  the  by4aws  may  prescribe;  and  no 
person  shall,  at  any  election,  be  entitled  to  vote  on  any  stock,  unless 
the  same  shall  have  been  standing  in  the  name  of  the  person  so  claim- 
ing to  vote,  upon  the  books  of  the  corporation,  at  least  thirty  days 
prior  to  such  election;  but  no  shares  shall  be  transferred  until  all 
previous  assessments  thereon  shall  be  fully  paid."  Gen.  Stat.  Kans., 
1868,  ch.  23,  §  27,  as  amended  by  Laws  1879,  ch.  88,  §  1 ;  76.,  1889, 
par.  1184. 

The  above  statute  which  was  in  force  on  and  after  January  11th, 
1899: 

"...  It  shall  also  be  the  duty  of  the  president  and  secretary 
of  any  such  corporation,  as  soon  as  any  transfer,  sale  or  change  of 
ownership  of  any  svch  stock  is  made  as  shown  upon  the  books  of  the  com- 
pany,  to  at  once  file  with  the  Secretary  of  State  a  statement  of  the  new 
stockholder  or  stockholders,  the  number  of  shares  so  transferred,  and  the 
par  vahie  and  the  amount  paid  on  such  stock.  No  transfer  of  suoh  stock 
shall  be  legal  or  binding  until  such  statement  is  mode  as  provided  for  in 
this  act:  provided,  however  that  no  transfers  of  stock  shall  release  the 
party  so  transferring  from  the  liability  of  the  laws  of  this  State  as  to 
stockholders  of  corporations  for  profit,  for  ninety  days  after  such 
transfer  and  the  filing  and  recording  thereof  in  the  office  of  the 
Secretary  of  State."  §  12,  Laws  of  Kansas,  Special  Session,  1898, 
p.  33. 


382  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  216  U.  S. 

corporation  to  the  extent  of  every  unpaid  subscription,  and 
for  an  additional  amount  equal  to  the  par  value  of  the  stock 
owned  by  him.  2.  That  if  an  execution  against  a  corporation 
was  returned  "no  property  found,"  then  execution  could  go, 
on  the  order  of  court  and  after  written  notice,  against  any 
stockholder,  to  the  extent  equal  in  amount  to  his  stock, 
together  with  the  amount,  if  any,  unpaid  thereon.  3.  That 
when  a  corporation  became  insolvent  a  receiver  could  be 
appointed  on  application  to  the  proper  court  to  close  its 
aflfairs;  and  it  was  made  the  duty  of  such  receiver  to  immedi- 
ately institute  proceedings  against  all  stockholders  to  collect 
unpaid  subscriptions,  together  with  the  additional  liability 
of  such  stockholders  equal  to  the  par  value  of  the  stock  held 
by  each ;  all  such  collections  to  be  for  the  benefit  of  creditors. 
4.  That  the  stock  of  the  corporation  should  be  transferable 
only  on  the  books  of  the  corporation  in  such  manner  as  the  law 
prescribed. 

By  an  act  passed  in  1899,  and  which  went  into  eflfect  Jan- 
uary 11th,  1899,  before  the  defendants  sold  their  stock,  the  pre- 
vious statute  (Gen.  Stat.  1868,  c.  23,  §  24)  was  so  amended 
as  to  make  it  the  duty  of  the  president  and  secretary  or  the 
managing  officer  of  each  corporation  for  profit  doing  business 
in  the  State  (other  than  banking,  insurance  and  railroad  coi^ 
porations)  as  soon  as  any  transfer,  sale  or  change  of  ownership 
of  stock  is  made,  as  shown  on  its  books,  "to  at  once^  with 
the  Secretary  of  State  a  statement  of  such  change  of  ownership, 
giving  the  name  and  address  of  the  new  stockholder  or  stock- 
holders, the  number  of  shares  so  transferred,  and  the  par 
value  and  the  amount  paid  on  such  stock."  The  same  stat- 
ute provided  that  "no  transfer  of  such  stock  shall  be  legal 
or  binding  until  such  statement  is  made  as  provided."  Laws 
of  Kans.  Special  Sess.  1898,  c.  10,  §  12,  p.  33.  It  is  not 
claimed  that  the  above  statement  had  been  made  or  filed  with 
the  company  prior  to  the  sale  by  the  defendants  of  their 
stock,  or  that  it  was  ever  filed,  and  the  result  is  that  the 
transfer  made  by  the  defendants  of  their  stock  (although  the 


HENLEY  V.  MYERS.  383 

215  U.  S.  Opinion  of  the  Court. 

fact  of  such  transfer  may  have  been  shown  on  the  books  of 
the  Wire  Company)  was  not  legal  or  binding,  if  the  statute 
was  valid. 

But  the  defendants  insist  that  as  the  statutes  of  Kansas 
did  not,  at  the  time  they  acquired  their  stock,  require  as  a 
condition  of  its  legal  or  binding  transfer  that  a  statement  of 
such  transfer  should  be  filed  with  the  Secretary  of  State,  by 
the  president,  secretary  or  managing  officer  of  the  corpora- 
tion, the  subsequent  statute  imposing  a  condition  of  that 
kind  impaired  the  obligation  of  the  contract  under  which 
stockholders  acquired  their  stock  in  violation  of  the  Constitu- 
tion of  the  United  States.  The  Supreme  Court  of  Kansas  re- 
jected this  view  and  they  were  right. 

In  what  way  the  transfer  of  the  stock  of  a  corporation  shall 
be  made  and  evidenced  is  a  matter  entirely  within  the  gov- 
ernmental power  of  the  State  that  creates  the  corporation, 
the  State  taking  care  that  such  power  be  not  so  exerted  as  to 
violate  any  right  secured  by  the  Supreme  Law  of  the  Land. 
It  was  never  contemplated  by  the  f ramers  of  the  Constitution 
that  the  national  authorities  should  supervise  the  action  of  a 
State  upon  such  a  subject,  so  long  as  the  State  did  not  trans- 
gress that  instrument  but  kept  within  the  Umits  of  its  reserved 
power  to  enact  such  reasonable  laws  or  regulations  as,  in  its 
judgment,  were  necessary  or  conducive  to  the  general  good. 
We  can  well  understand  how  the  State  might  have  concluded 
that  the  statutory  requirement  in  force  when  the  defendants 
acquired  their  stock,  to  the  effect  that  transfers  of  the  stock 
of  corporations  created  by  the  State  (except  certain  corpo- 
rations) should  be  transferable  only  on  the  books  of  the  cor- 
poration, was  not  effective  or  sufficient;  particularly,  because 
such  books  might  not  be  easily  or  at  all  accessible.  And  we 
can  also  well  understand  how  the  State  might  have  reasonably 
concluded,  in  the  interest  of  the  public,  particularly  of  pur- 
chasers of  stock,  and  of  stockholders  as  well,  that  the  evi- 
dence of  such  transfers  should  appear  from  the  records  of 
some  public  office,  like  that  of  the  Secretary  of  State.    Hence, 


384  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

perhaps,  the  enactment  of  the  statute  which  went  into  effect 
January  11,  1899.  Such  a  requirement  as  that  in  the  act  of 
1899  did  not  increase,  in  any  degree  whatever,  the  liability 
of  stockholders,  as  agreed  to  by  them  when  becoming  stock- 
holders. On  the  contrary,  it  was  in  the  interest  of  stock- 
holders as  determining  the  fact  of  their  ceasing  to  be  stock- 
holders on  and  after  a  particular  date.  Further,  the  statute 
did  not  forbid  a  sale  of  the  stock  upon  such  terms  as  might 
be  agreed  upon  between  a  stockholder  and  any  purchaser, 
the  transfer,  pursuant  to  such  sale,  being  evidenced  as  pre- 
scribed by  the  statute.  Nor,  if  sued  as  stockholders,  did  the 
act  deprive  defendants  of  any  valid  defense  which  they  were 
entitled  to  make  at  the  time  they  acquired  their  stock.  It 
did  nothing  more  than  to  prescribe,  presumably  in  the  in- 
terest of  the  parties  immediately  concerned  and  of  the  pub- 
lic, a  rule  imder  which  a  person,  owning  and  selling  his  stock 
in  a  corporation,  should  be  regarded  as  a  stockholder,  unless 
and  imtil  its  sale  and  transfer  were  manifested  by  a  statement 
of  a  particular  kind  filed  in  a  named  public  office.  If  it  be 
said  that  the  officers,  charged  with  the  duty  of  making  and 
filing  that  statement,  might  fail  or  refuse  to  discharge  the 
duty  imposed  upon  them,  the  answer  is,  that  if  injury  thereby 
came  to  the  stockholder,  those  officers  would  be  liable  to  him 
for  such  injury  arising  from  neglect  of  duty.  Besides,  those 
oflBcers  could  be  compelled  by  proper  proceedings  to  perform 
the  duty  put  upon  them  by  the  statute.  We  hold  that  the 
defendants  acquired  their  stock  subject,  necessarily,  to  the 
power  of  the  State,  having  due  regard  to  the  legal  rights  of 
parties,  to  regulate  the  transfer  of  stocks  in  its  own  corporar 
tions.  In  its  first  opinion  in  this  case  the  Supreme  Court  of 
Kansas  well  said  (p.  735):  "Before  the  act  [of  1899]  was 
passed  one  who  had  sold  stock  of  a  corporation,  in  order  to 
relieve  himself  from  liability  for  its  debts,  was  obliged  to  see 
that  the  transfer  was  noted  by  its  officer  upon  its  books;  the 
enactment  merely  imposed  an  additional  duty  to  see  that  a 
similar  notation  was  made  upon  a  public  record.    The  change 


HENLEY  V,  MYERS.  386 

215  U.  S.  Opinion  of  the  Court. 

imposed  no  restraint  upon  the  transfer  of  the  stock,  but  re- 
lated only  to  the  means  by  which  it  should  be  accomplished 
and  the  manner  in  which  it  might  be  evidenced.  It  is  essen- 
tially a  matter  of  method — of  procedure — rather  than  of 
ultimate  substantial  rights." 

Equally  without  merit  is  the  contention  that  the  statute 
of  1899  impaired  the  obligations  of  the  stockholders'  contract, 
in  that  it  substituted  for  individual  actions  against  them  a 
suit  in  equity  by  a  receiver  appointed  after  judgment  against 
the  corporation.  In  becoming  stockholders  the  defendants 
did  not  acquire  a  vested  right  in  any  particular  mode  of  pro- 
cedure adopted  for  the  purpose  of  enforcing  their  liability  as 
stockholders.  It  is  a  well-established  doctrine  that  mere  meth- 
ods of  procedure  in  actions  on  contract  that  do  not  affect  the 
substantial  rights  of  parties  are  always  within  the  control  of 
the  State.  It  is  to  be  assumed  that  parties  make  their  con- 
tracts with  reference  to  the  existence  of  such  power  in  the 
State. 

Without  expressing  any  opinion  as  to  questions  of  a  local 
character,  we  hold,  for  the  reasons  stated,  that  the  statute  of 
1899  furnishes  no  valid  basis  for  the  contention  that  it  im- 
paired the  obligation  of  the  contract  by  which  defendants 
acquired  their  stock.  This  is  the  only  Federal  question  of  a 
substantial  character  presented  on  this  writ  of  error,  and  the 
judgment  of  the  Supreme  Court  of  Kansas  must  be  affirmed. 

It  is  so  ordered. 
VOL.  ccxv — ^25 


386  OCTOBER  TERM,  1909 

Statement  of  the  Case.  215  U.  8. 


UNION  PACIFIC  RAILROAD  COMPANY  v.  HARRIS. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  KANSAS. 
No.  19.     Argued  November  2,  1909.— Decided  January  3,  1910. 

The  words  "public  lands"  in  l^islation  refer  to  such  lands  as  are  sub- 
ject to  sale  or  other  disposal  under  general  laws,  and  no  other  mean- 
ing will  be  attributed  to  them  unless  apparent  from  the  context  of 
or  circumstances  attending  the  legislation. 

While  the  power  of  Congress  continues  over  lands  sought  to  be  ac- 
quired under  preemption  and  homestead  laws  until  final  payment, 
an  entryman  in  actual  possession  cannot  be  dispossessed  of  his 
priority  at  the  instance  of  an  individual. 

While  a  grant  of  right  of  way  may  take  effect  as  of  the  date  of  the 
grant  that  date  must  be  found  in  the  act  prescribing  the  finally 
adopted  route. 

In  this  case  the  rights  of  a  bona  fide  settler  holding  a  patent  under  pre- 
emption law  and  his  grantee  held  superior  to  those  of  the  railroad 
company  under  the  act  of  July  1,  1862,  12  Stat.  489,  494,  granting 
public  lands  for  a  railway  right  of  way. 

76  Kansas,  255,  affirmed. 

The  admitted  facts  are  that  on  April  22,  1861,  Bemhard 
BIou  settled  upon  and  improved  the  northeast  quarter  of 
section  12,  township  14  south,  of  range  3,  in  Saline  County, 
Kansas,  and  on  May  13,  18()1,  filed  the  declaratory  statement 
required  by  the  preemption  laws.  Blou,  by  occupation,  culti- 
vation and  improvements,  preserved  all  his  rights  under  the 
preemption  until  September  5,  1865,  when,  having  made  no 
payment  or  final  proof,  he  changed  his  preemption  entry  to  one 
imder  the  homestead  act  of  May  20,  1862.  He  continued  in 
occupation,  on  December  8,  1870  made  final  proof  unde^  his 
homestead  entry,  and,  on  March  15,  1872  received  a  patent. 

By  the  act  of  July  1,  1862,  the  general  Union  Pacific  Rail- 
road act,  12  Stat.  489,  493,  c.  120,  the  Leavenworth,  Pawnee 
and  Western  Railroad  Company,  whose  name  was  changed 
to  the  Union  Pacific  Railroad  Company,  Eastern  Division, 


UNION  PACIFIC  R.  R.  CO.  v.  HARRIS.  387 

215  U.  S.  Statement  of  the  Case. 

and  thereafter  to  the  Kansas  Pacific  Railway  Company,  was 
granted  a  right  of  way  200  feet  in  width  on  each  side  of 
its  road,  through  the  public  lands  of  the  United  States. 
The  plaintiff  in  error,  hereinafter  called  the  defendant,  has 
succeeded  to  the  right,  title  and  interest  of  the  Leavenworth 
company.  The  route  of  the  company  as  prescribed  by  the 
act  ran  from  Missouri  up  the  Kaw  River  until  it  reached  the 
Republican  River,  and  then  north  along  the  left  bank  of  that 
river  to  intersect  with  the  one  hundredth  meridian  in  the 
Territory  of  Nebraska.  On  July  17,  1862,  the  company  filed 
its  map  of  general  route,  and  caused  the  lands  within  the 
limits  of  fifteen  miles  thereof  on  either  side  of  the  proposed 
route  to  be  withdrawn  from  sale.  Under  the  amendatory  act 
of  July  2,  1864,  13  Stat.  356,  c.  216,  the  company  filed  an- 
other map,  designating  the  same  general  route.  Neither  of 
these  routes  came  within  forty-five  miles  of  the  tract  in  con- 
troversy. Among  the  changes  in  the  last-named  act  is  one 
providing  in  §  3  for  the  condemnation  of  a  right  of  way  200 
feet  wide  through  land  occupied  by  the  owner  or  claimant. 
The  act  of  July  3,  1866,  14  Stat.  79,  c.  159,  changed  the  route 
to  extend  westwardly  towards  Denver.  Under  this  act  the 
company  located  and  constructed  its  road  westwardly  along 
the  Smoky  Hill  River  instead  of  northwestwardly  along  the 
Republican  River,  and,  as  located  and  constructed,  the  road 
passed  through  the  quarter-section  which  Blou  was  then  seek- 
ing to  acquire  under  the  homestead  law. 

On  January  20,  1873,  Bemhard  Blou  executed  and  de- 
livered to  the  Kansas  Pacific  Railway  Company,  the  succes- 
sor of  the  Leavenworth,  Pawnee  and  Western  Railroad  Com- 
pany, a  deed  for  a  right  of  way  through  said  quarter-section, 
which  deed  the  railway  company  accepted  and  paid  him  the 
consideration  named  in  it.  The  land  in  controversy  is  a  strip 
150  feet  wide,  lying  immediately  south  of  a  line  fifty  feet 
south  of  the  center  of  the  track  of  the  defendant  through  the 
quarter-section.  On  November  10,  1882,  Blou  sold  and  con- 
veyed to  John  Erickson  by  warranty  deed  all  that  part  of  the 


388  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  T7.  S. 

quarter-section  lying  south  of  the  railroad  track,  containing 
101  acres.  The  defendants  in  error,  hereinafter  called  the 
plaintiffs,  derive  title  from  Erickson.  The  plaintiffs  and  those 
under  whom  they  claim  had  exclusive  possession  of  the  land 
in  question  from  May,  1861,  to  August,  1902;  broke  and 
cultivated  it,  and  paid  all  taxes  assessed  upon  it  since  the 
issue  of  the  patent.  In  August,  1902,  the  defendant  fenced 
and  took  possession  of  the  tract  in  controversy,  whereupon 
this  action  to  recover  possession  was  commenced  by  the 
plaintiffs.  The  court  found  in  their  favor,  and  rendered  judg- 
ment accordingly.  This  judgment  was  affirmed  by  the  Su- 
preme Court  of  the  State  {Union  Pacific  R.  R,  v.  Harris^  76 
Kansas,  255),  and  thereupon  the  case  was  brought  here  on 
error. 

Mr.  Maxwell  Evarts,  with  whom  Mr.  R.  W,  Blair  was  on 
the  brief,  for  plaintiff  in  error. 

Mr,  T,  F,  Garver  and  Mr.  L.  C.  Milliken  for  defendant  in 
error,  submitted. 

Mr.  Justice  Brewer,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

The  grant  of  the  right  of  way  was  "through  the  public 
lands."  What  is  meant  by  'public  lands'  is  well  settled. 
As  stated  in  Newhdl  v.  Sanger,  92  U.  S.  761,  763:  "The  words 
'public  lands'  are  habitually  used  in  our  legislation  to  de- 
scribe such  as  arc  subject  to  sale  or  other  disposal  under  gen- 
eral laws."  See  also  Barker  v.  Harvey,  181  U.  S.  481,  490; 
Minnesota  v.  Hitchcock,  185  U.  S.  373,  391.  If  it  is  claimed 
in  any  given  case  that  they  are  used  in  a  different  meaning,  it 
should  be  apparent  either  from  the  context  or  from  the  cir- 
cumstances attending  the  legislation.  While  the  power  of 
Congress  over  lands  which  an  individual  is  seeking  to  acquire 
under  either  the  preemption  or  the  homestead  law  remains 
until  by  the  payment  of  the  full  purchase  price  required  by 
the  former  law  or  the  full  occupation  prescribed  by  the  lat- 


-^ 


UNION  PACIFIC  R.  R.  CO.  v.  HARRIS.  389 

216  U.  S.  Opinion  of  the  Court. 

ter,  yet  under  the  general  land  laws  of  the  United  States  one 
who,  having  made  an  entry,  is  in  actual  occupation  under  the 
preemption  or  homestead  law  cannot  be  dispossessed  of  his 
priority  at  the  instance  of  any  individual.  Hastings  &c.  Rail- 
road Co.  V.  Whitney,  132  U.  S.  357,  363,  364.  In  other  words, 
one  who  has  taken  land  under  the  preemption  or  homestead 
law  acquires  an  equity  of  which  he  cannot  be  deprived  by 
any  individual  under  the  like  laws.  Now  at  the  time  of  the 
passage  of  the  act  of  July  3,  1866,  Blou  was  and  had  been  for 
several  months  in  actual  occupation  under  the  homestead 
law.  Did  Congress  intend  by  its  legislation  to  deprive  him  of 
that  equity  which  he  had  under  the  general  land  laws  as 
against  any  one  proceeding  under  those  laws? 

Any  possible  rights  of  the  railroad  company  in  this  land 
commence  with  the  act  of  July  3,  1866,  for  while  the  acts  of 
1864  and  1866  were  in  amendment  of  the  act  of  1862,  yet 
the  route  prescribed  by  the  acts  of  1862  and  1864  was  far  to 
the  east  of  this  land,  and  only  by  the  act  of  1866  was  the 
company  authorized  to  construct  a  road  through  or  near  it. 
True,  as  held  in  Railroad  Company  v.  BaJdmny  103  U.  S.  426; 
Bybee  v.  Oregon  &  California  Railroad  Company,  139  U.  S. 
663,  679;  Northern  Pacific  Railway  Company  v.  Hasse,  197 
U.  S.  9,  10,  the  grant  of  the  right  of  way  is  absolute,  and  takes 
effect  as  of  the  date  of  the  grant.  But  that  date  must  be  found 
in  an  act  prescribing  the  finally  adopted  route. 

A  case  much  relied  upon  by  the  railroad  company,  as 
showing  the  intent  of  Congress  in  its  grant  of  the  right  of  way 
to  the  Union  Pacific  Railroad  Company  and  its  tributaries, 
is  Union  Pacific  Ry,  Company  v.  Douglas  County,  31  Fed. 
Rep.  540.    In  it  it  was  held: 

*'It  was  the  evident  intention  of  Congress  by  the  act  of 
July  1,  1862,  12  Stat.  491,  giving  a  right  of  way  to  the  Union 
Pacific  Railroad  Company,  to  grant  such  right  of  way  through 
those  lands  which  by  surveys  should  be  foimd  to  be  sections  16 
and  36,  the  school  sections  which  it  intended  to  give  to  the 
future  State  of  Nebraska,  pursuant  to  the  provisions  of  the 


390  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

organic  act  of  1854,  10  Stat,  283,  creatiDg  the  Territory  of 
Nebraska/' 

In  other  words,  it  was  held  that  although  Congress  had  in 
1854  created  the  Territory  of  Nebraska,  with  the  provision  that 
when  the  lands  within  it  were  surveyed  sections  16  and  36  in 
each  township  should  be  reserved  for  school  purposes,  it 
meant  by  the  act  of  1862  to  grant  a  right  of  way  to  the  rail- 
road company  through  lands  which  should  thereafter  be  found 
to  be  those  sections.  But  that  decision  does  not  reach  to  the 
precise  question  here  presented,  and  many  of  the  reasons 
which  led  to  it  are  inapplicable  here.  It  was  well  known 
that  a  large  part  of  western  Nebraska  was  at  the  time  of  the 
passage  of  the  act  of  1862  not  only  unoccupied  but  unsur- 
veyed.  The  speedy  constniction  of  the  railroad  to  the  Pacific 
was  desired,  and  nothing  was  said  about  a  condemnation  of 
the  right  of  way.  By  the  amendatory  act  of  1864,  however, 
provision  was  made  for  such  condemnation  through  land 
occupied  by  an  owner  or  claimant.  In  Washington  &  Idaho 
Railroad  Company  v.  Osbom,  160  U.  S.  103,  it  appeared  that 
Osbom  was  a  settler  upon  unsurveyed  pubBc  land  and  had 
placed  improvements  thereon,  and  intended  when  the  sur- 
veys were  made  to  preempt  the  same  under  the  preemption 
laws  of  the  Government.  The  railroad  company  was  vested 
by  the  act  of  March  3,  1875,  18  Stat.  482,  c.  152,  with  a  right 
of  way  through  the  public  lands  of  the  United  States,  subject 
to  the  exception  of  "lands  within  the  limits  of  any  military 
park  or  Indian  reservation,  or  other  lands  specially  reserved 
from  sale''  (§  5).  Osbom  did  not  come  within  the  terms  of 
this  exception.  The  act  of  March  3, 1875,  authorized  the  legis- 
lature of  any  Territory  to  provide  the  manner  in  which  pri- 
vate lands  and  possessory  claims  of  lands  of  the  United  States 
might  be  condemned,  and  further,  that  when  no  provision 
should  have  been  made  such  condemnation  might  be  made 
in  accordance  with  §  3  of  the  act  of  July  2,  1864,  supra.  And 
upon  this  the  court,  sustaining  Osbom's  claim  of  pajrment 
for  the  right  of  way,  said  (p.  109) : 


UNION  PACIFIC  R.  R.  CO.  v.  HARRIS.  391 

215  U.  S.  Opinion  of  the  Court. 

"It  must,  therefore,  be  conceded  that  Osbom  did  not,  by 
maintaining  possession  for  several  years  and  putting  val- 
uable improvements  thereon,  preclude  the  Government  from 
dealing  with  the  lands  as  its  own,  and  from  conferring  them 
on  another  party  by  a  subsequent  grant. 

"On  the  other  hand,  it  would  not  be  easy  to  suppose  that 
Congress  would,  in  authorizing  railroad  companies  to  traverse 
the  public  lands,  intend  thereby  to  give  them  a  right  to  run 
the  lines  of  their  roads  at  pleasure,  regardless  of  the  rights 
of  settlers." 

It  is  true,  as  suggested  in  Western  Padjic  Railroad  Comr 
pany  v.  TeviSy  41  California,  489,  493,  that  the  condemnation 
proceedings  named  by  the  act  of  July  2,  1864,  were  in  terri- 
torial courts,  whereas  Kansas  at  that  time  was  a  State.  But 
imdoubtedly  the  thought  of  Congress  was  the  protection  of 
an  owner  or  claimant  by  condemnation  proceedings  and  not 
in  what  courts  those  proceedings  should  be  had. 

Further,  "  this  right  of  way  through  school  sections  had  been 
accepted  without  challenge  for  twenty  years ''  (31  Fed.  Rep. 
541).  This  indicated  the  general  understanding,  and  was 
significant.  The  contrary  appears  here.  The  railway  com- 
pany not  only  did  not  disturb  the  possession  of  the  settler 
for  nearly  forty  years,  but  on  the  other  hand  purchased  and 
paid  him  for  a  right  of  way  through  the  tract. 

We  are  of  opinion  that  the  case  of  Crier  v.  Innes,  160  U.  S. 
103,  is,  as  respects  the  case  at  bar,  inconsistent  with  that  in 
the  31st  Fed.  Reporter,  and  must  be  held  to  have  to  that 
extent  overruled  it.  We  do  not  think  that  it  would  be  profit- 
able to  cite  the  many  other  cases  which  touch  the  question 
before  us  more  or  less  closely,  or  to  seek  to  point  out  the  differ- 
ences between  them  and  this,  or  to  notice  all  the  general 
expressions  which  are  to  be  found  in  them. 

We  are  of  opinion  that  the  Supreme  Court  of  Kansas  did 
not  err,  and  its  judgment  is 

Affirmed, 


392  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  8. 


KOMADA  &  CO.  V.  UNITED  STATES. 

CERTIORARI  TO  THE  CIRCUIT  COURT  OF  APPEAU3  FOR  THE 

NINTH  CIRCUIT. 

No.  220.    Argued  November  29,  30,  1909.— Decided  January  3,  1910. 

The  construction  given  by  the  Department  charged  with  executing 
a  tariff  act  is  entitled  to  great  weight;  and  where  for  a  number 
of  years  a  manufactured  article  has  been  classified  under  the  simili- 
tude section  this  court  will  lean  in  the  same  direction;  and  so  held 
that  the  Japanese  beverage,  sake,  is  properly  dutiable  under  §  297 
of  the  tariff  act  of  July  24,  1897,  c.  11,  30  Stat.  151,  205,  as  similar 
to  still  wine  and  not  as  similar  to  beer. 

After  a  departmental  classification  of  an  article  under  the  similitude 
section  of  a  tariff  law,  the  reenactment,  by  Congress,  of  a  tariff  law 
without  specially  classif3ring  that  article  may  be  regarded  as  a  quali- 
fied approval  by  Congress  of  such  classification. 


This  case  is  before  us  on  a  writ  of  certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the  Ninth  Circuit.  The 
question  is  the  proper  classification,  under  the  tariff  act  of 
July  24,  1897,  30  Stat.  151,  c.  11,  of  a  Japanese  beverage 
known  as  "sake."  "Sake"  is  not  named  in  that  act,  but  §  7 
(p.  205),  frequently  spoken  of  as  "the  similitude  section," 
reads  as  follows: 

"That  each  and  every  imported  article,  not  enumerated 
in  this  act,  which  is  similar,  either  in  material,  quality,  texture, 
or  the  use  to  which  it  may  be  applied,  to  any  article  enumer- 
ated in  this  act  as  chargeable  with  duty,  shall  pay  the  same 
rate  of  duty  which  is  levied  on  the  enumerated  article  which 
it  most  resembles  in  any  of  the  particulars  before  mentioned ; 
and  if  any  non-enumerated  article  equally  resembles  two  or 
more  enumerated  articles  on  which  different  rates  of  duty  are 
chargeable,  there  shall  be  levied  on  such  non-enumerated 


KOMADA  V.  UNITED  STATES.  393 

215  U.  S.  Argument  for  Petitioner. 

article  the  same  rate  of  duty  as  is  chargeable  on  the  article 
which  it  resembles  pa3dng  the  highest  rate  of  duty." 

In  November,  1904,  petitioner  imported  some  sake  at  the 
port  of  San  Francisco,  and,  following  prior  rulings,  the  col- 
lector, under  the  similitude  section,  held  it  similar  to  still 
wine  containing  more  than  fourteen  per  cent  of  absolute 
alcohol,  and  dutiable  accordingly  at  fifty  cents  per  gallon, 
under  paragraph  296  (p.  174).  The  petitioner  protested  and 
claimed  that  it  was  either  a  non-enumerated  manufactured 
article,  dutiable  at  twenty  per  cent  ad  valorem,  imder  §  6 
(p.  205),  or,  by  reason  of  similitude  to  ale,  porter  or  beer,  at 
twenty  cents  per  gallon  under  paragraph  297  (p.  174).  Both 
the  board  of  general  appraisers  and  the  Circuit  Court  sus- 
tained the  protest,  feeling  themselves  constrained  by  the 
decision  of  the  Circuit  Court  for  the  Southern  District  of  New 
York  (Nishimiya  v.  United  States,  131  Fed.  Rep.  650)  and 
that  of  the  Circuit  Court  of  Appeals  for  the  Second  Circuit, 
(United  States  v.  Nishimiya,  137  Fed.  Rep.  396;  S,  C,  69  C. 
C.  A.  588).  On  appeal,  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Ninth  Circuit  reversed  the  decision  of  the  Circuit 
Court  and  sustained  the  classification  made  by  the  collector. 

Mr.  Thomas  Fitch  and  Mr.  W.  Wickham  Smith,  with  whom 
Mr.  John  M.  Thurston  was  on  the  brief,  for  petitioner : 

Under  the  similitude  section  of  the  tariff  act  the  similitude 
must  be  substantial.  Arthur  v.  Fox,  108  U.  S.  125;  Murphy  v. 
Anderson,  96  U.  S.  131. 

In  cases  of  doubtful  classification  of  articles  the  construc- 
tion is  to  be  in  favor  of  the  importer.  Powers  v.  Barney,  5 
Blatchf.  202;  Adams  v.  Bancroft,  5  Sumner,  384;  Hartranft  v. 
Wiegmann,  121  U.  S.  609;  Am.  N.  &  T.  Co.  v.  Worthington, 
141  U.  S.  468;  United  States  v.  Wiggleamth,  2  Story,  369; 
United  States  v.  Davis,  54  Fed.  Rep.  147;  Matheson  &  Co.  v. 
United  States,  71  Fed.  Rep.  394;  Hempstead  &  Sons  v.  Thomas, 
122  Fed.  Rep.  538. 

While  the  highest  rate  of  duty  will  be  imposed  where  the 


394  OCTOBER  TERM,  1909. 

Argument  for  Petitioner.  215  U.  S. 

similitude  is  equal,  yet,  in  determining  whether  there  is  or 
is  not  an  equality,  the  doubt  will  be  resolved  in  favor  of  the 
importer.  Tiffany  v.  United  States,  112  Fed.  Rep.  672;  Re 
Guggenheim  Smelting  Co,,  112  Fed.  Rep.  517;  United  States  v. 
Dana,  99  Fed.  Rep.  433;  Re  Herter  Bros,,  53  Fed.  Rep.  913; 
MandeU  v.  Seeberger,  39  Fed.  Rep.  760.  And  see  also  United 
States  V.  Wotton,  53  Fed.  Rep.  344;  United  States  v.  Schover- 
ling,  146  U.  S.  76;  Von  Bemuth  v.  United  States,  146  Fed. 
Rep.  61 ;  Hahn  v.  United  States,  100  Fed.  Rep.  635. 

Methods  of  manufacture  are  to  be  considered  in  determin- 
ing similitude.  Weilbacher  v.  Merritt,  37  Fed.  Rep.  85;  Greenr 
leafv,  Goodrich,  101  Fed.  Gas.  1168;  afTd  101  U.  S.  278. 

There  is  no  force  in  the  suggestion  that  the  decision  in  the 
Woozens  Case,  G.  A.  2786,  establishes  any  rule  of  construction. 
That  rule  can  only  be  invoked  after  long  continued  practice 
in  the  same  case.  Merritt  v.  Cameron,  137  U.  S.  542;  United 
States  v.  Johnson,  173  U.  S.  363,  377;  Cross  v.  Burke,  146 
U.  S.  82,  87. 

The  doctrine  of  commercial  designation  does  not  apply, 
and  if  it  did  the  weight  of  evidence  is  against  the  Govern- 
ment. 

That  sake  is  not  a  spirituous  beverage  is  shown  by  nu- 
merous decisions,  six  of  state,  two  of  Federal,  courts  besides 
one  of  this  court.  The  testimony  of  five  importers  and  two 
Government  appraisers  shows  that  sake  is  not  a  wine  by 
commercial  designation.  Statistics  of  Japanese  immigration 
show  that  the  commercial  world  has  never  acquiesced  in  its 
classification  as  a  wine.  The  rulings  of  the  internal  revenue 
department  show  that  there  it  has  for  years  been  classed  and 
taxed  as  a  beer.  The  customs  laws  show  that  the  quantity 
of  alcohol  in  a  beverage  is  not  the  test  by  which  it  is  classi- 
fied. The  evidence  conclusively  shows  that  in  material  from 
which  made,  in  process  of  manufacture,  in  chemical  com- 
position, in  stability,  in  taste  and  in  manner  of  use  there  are 
wide  dissimilitudes  between  sake  and  still  wine. 

The  sole  similitude  between  wine  and  sake  is  in  alco- 


KOMADA  V.  UNITED  STATES.  396 

215  U.  S.  Argument  for  the  United  States. 

holic  strength.  The  General  Board  of  Appraisers,  the  United 
States  Circuit  Court  for  the  Southern  District  of  New  York, 
the  United  States  Circuit  Court  for  the  Second  Circuit  and 
the  United  States  Circuit  Court  for  the  Northern  District 
of  California  all  decided  that  the  one  similitude  in  alcoholic 
strength  was  not  sufficient  as  against  the  many  dissimilitudes 
to  establish  a  substantial  similitude  between  sake  and  wine. 
The  United  States  Circuit  Coiut  of  Appeals  for  the  Ninth  Cir- 
cuit decided  that  the  one  similitude  of  alcoholic  strength 
overcomes  all  dissimilitudes. 

Mr.  J.  C.  McReynoldSj  Special  Assistant  to  the  Attorney 
General,  with  whom  The  Attorney  General  was  on  the  brief, 
for  the  United  States : 

The  action  •of  the  collector  is  presumptively  correct  and  the 
burden  is  on  the  importers  to  establish  their  contention;  the 
judgment  of  the  Circuit  Court  of  Appeals  should  be  approved, 
therefore,  even  though  this  coiut  should  think  the  weight  of 
evidence  against  that  conclusion.  Arthur  v.  UnJcartj  96  U.  S. 
118;  Eamshaw  v.  Cadvxdader,  145  U.  S.  247,  262;  Erhardt  v. 
Sckroeder,  155  U.  S.  124;  United  States  v.  Raniett,  172  U.  S. 
133,  146.  Similarity  is  a  question  of  fact.  Herman  v.  MiUer, 
127  U.  S.  363,  370. 

As  this  classification  has  existed  since  1894  no  hardship 
whatever  has  been  imposed  on  the  importer.  United  States 
V.  HermanoSy  209  U.  S.  337.  And  see  Robertson  v.  Downing, 
127  U.  S.  607;  United  States  v.  Healy,  160  U.  S.  136;  United 
States  V.  Folk,  204  U.  S.  143;  HiU  Bros.  v.  United  States,  151 
Fed.  Rep.  476 ;  Momingstar  v.  United  States,  159  Fed.  Rep.  287. 

The  similitude  clause  has  long  been  a  part  of  tariff  legisla- 
tion. See  tariff  act  of  1842  and  all  subsequent  ones.  Stvart 
V.  Maxwell,  16  How.  150,  160.  As  to  the  construction  of 
that  clause  see  Arthur  v.  Fox,  108  U.  S.  125;  United  States  v. 
Roessler  Co.,  137  Fed.  Rep.  770;  Greerdeaf  v.  Goodrich,  101 
U.  S.  278,  283;  WeObacher  v.  Merritt,  37  Fed.  Rep.  85;  Man- 
dell  V.  Seeberger,  39  Fed.  Rep.  760;  Keary  v.  Magone,  40  Fed. 


396  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

Rep.  873;  Re  Herter  Bros.,  53  Fed.  Rep.  913;  United  States  v. 
Dana,  99  Fed.  Rep.  433;  Hahn  v.  United  States,  100  Fed.  Rep. 
635;  Tiffany  v.  United  States,  112  Fed.  Rep.  672;  Re  Smelting 
Co.,  112  Fed.  Rep.  517;  WaddeU  &  Co.  v.  United  States,  124 
Fed.  Rep.  301;  Rich  v.  Unilcd  States,  177  Fed.  Rep.  293. 

Sake  is  similar  to  still  wines  as  measured  by  use,  quality  and 
material,  and  although  there  may  be  some  similarity  to  beer 
there  is  a  greater  similarity  to  still  wine. 

Mr.  Justice  Brewer,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

Something  can  be  said  on  both  sides  of  the  question  of 
similarity,  and  if  the  case  turned  simply  upon  that  question 
it  might  be  difficult  to  reach  a  satisfactory  conclusion.  In 
such  a  case  the  construction  given  by  the  Department  charged 
with  the  execution  of  the  tariff  acts  is  entitled  to  great 
weight.  As  said  by  Mr.  Justice  McKenna,  delivering  the  re- 
cent opinion  of  the  court  in  United  States  v.  Hermanos,  209 
U.S.  337,  339: 

"  We  have  said  that  when  the  meaning  of  a  statute  is  doubt- 
ful great  weight  should  be  given  to  the  construction  placed 
upon  it  by  the  department  charged  with  its  execution.  Robert- 
son y.  Downing,  127  U.  S.  607;  United  States  v.  Hedley,  160 
U.  S.  136.  And  we  have  decided  that  the  reenactment  by 
Congress,  without  change,  of  a  statute  which  had  previously 
received  long  continued  executive  construction  is  an  adoption 
by  Congress  of  such  construction.  United  States  v.  FaUc,  204 
U.  S.  143,  152." 

In  the  decision  of  this  case  Mr.  Justice  White  and  Mr.  Jus- 
tice Peckham  concurred  solely  because  of  the  prior  admin- 
istrative construction. 

Prior  to  1894  sake  was  classified  by  similitude  to  distilled 
liquor  and  subjected  to  a  duty  of  $2.50  per  proof  gallon  under 
paragraph  329,  act  1890,  26  Stat.  567,  589,  c.  1244,  and  $2 
under  Schedule  A,  act  1883,  22  Stat.  488,  494,  c.  121. 


KOMADA  V,  UNITED  STATES.  397 

215  U.  S.  Opinion  of  the  Ck>urt. 

In  July,  1894,  Y.  Woozeno  protested  against  this  classifica- 
tion, claiming  the  liquor  was  dutiable  under  the  act  of  1890 
by  similitude  to  still  wine.  He  was  sustained  by  the  Board 
of  General  Appraisers  in  opinion  dated  October  4, 1894  (T.  D. 
15392,  G.  A.  2786).  The  Treasury  Department  acquiesced, 
and  has  acted  accordingly  until  the  present  time;  no  protest 
against  the  practice  was  entered  until  March,  1902.  Three 
years  after  the  ruling  in  the  Woozeno  case.  Congress  passed 
the  tariff  act  of  1897,  which  in  no  way  modified  the  provisions 
upon  which  the  appraisers  had  previously  based  their  de- 
cision. This  in  effect  confirmed  their  action.  In  March,  1902, 
Hackfeld  &  Co.,  Honolulu,  protested  against  the  classification 
of  "sake"  by  similitude  to  still  wine,  but  the  prior  ruling 
was  sustained  by  the  appraisers  and  the  importer  acquiesced 
in  the  decision.  In  the  tariff  act  of  1909  sake  is  specially 
enumerated  with  still  wine,  (paragraph  307) : 

"Still  wines,  including  ginger  wine  or  ginger  cordial,  ver- 
muth, and  rice  wine  or  sake,  and  similar  beverages  not 
specially  provided  for  in  this  section,  ...  if  containing 
more  than  fourteen  per  centum  of  absolute  alcohol,  sixty 
cents  per  gallon."    36  Stat.  11,  40,  c.  6. 

In  April,  1903,  Nishimiya  imported  some  sake  at  New 
York,  and  protested  against  the  classification  by  similitude 
to  still  wine.  The  board  of  appraisers  sustained  the  collector, 
but  on  appeal  to  the  Circuit  Court  for  the  Southern  District 
of  New  York  the  Circuit  Judge  thought  that  sake  was  not 
suflBciently  like  either  wine  or  beer  to  be  classified  by  simili- 
tude, and  held  it  to  be  a  non-enumerated  manufactured  arti- 
cle. This  conclusion  was  sustained  by  the  Circuit  Court  of 
Appeals  for  the  Second  Circuit.  United  States  v.  Nishimiya, 
supra. 

Thus  it  appears  that  prior  to  1894  sake  was  classified  by 
similitude  to  distilled  liquor,  and  then  on  a  protest  by  an 
importer  it  was  classified  by  similitude  to  still  wine,  and  that 
ruling  has  been  followed  from  that  time  to  the  present, 
receiving  in  the  meantime  at  least  a  qualified  approval  by 


398  OCTOBER  TERM,  1909. 

Coumiel  for  Parties.  215  U.  S. 

Congress.  It  was  accepted  without  challenge  until  1902. 
Then,  a  protest  against  it  having  been  ovenxiled,  it  remained 
unchallenged  for  another  year.  After  this,  and  in  the  latest 
tariff  act,  Congress  has  in  terms  put  sake  in  the  category 
with  still  wines. 

Under  these  circumstances  we  think  the  intent  of  Congress 
in  respect  to  the  classification  of  sake  is  clearly  manifested, 
and  the  judgment  of  the  Court  of  Appeals  is 

Affirmed. 


*•» 


ELIAS  V.  RAMIREZ. 

APPEAL    FROM    THE    SUPREME    COURT    OP    THE    TERRirORY    OF 

ARIZONA. 

No.  30.    Submitted  November  5,  1909.— Decided  January  3,  1910. 

In  this  case  this  court,  reviewing  the  e\idence,  reverses  the  territorial 
court  and  finds  that  there  is  evidence  to  show,  with  sufficient  cer- 
tainty, that  an  extraditable  crime  was  committed  by  the  person 
benefited  thereby,  and  thus  to  satisfy  the  extradition  procedure 
statute  and  justify  the  order  of  the  commissioner  committing  the  ac- 
cused to  await  the  action  of  the  Executive  Department  on  a  requisi- 
tion made  for  forgery  under  the  extradition  treaty  with  Mexico. 

Although  the  statements  of  certain  witnesses  were  unsworn  to  and 
therefore  might  not,  under  the  state  law,  be  admissible  before  a 
committing  magistrate,  under  the  extradition  statute  they  are  re- 
ceivable by  the  commissioner  to  create  a  probability  of  the  commis- 
sion of  the  crime  by  the  accused. 

90  Pac.  Rep.  323,  afifirmed. 

The  facts  are  stated  in  the  opinion. 
Mr,  A.  C,  Baker,  for  appellant. 


ELIAS  r.  RAMIREZ.  399 

215  U.  S.  Opinion  of  the  Court. 

Mr.  William  Herring^  for  appellee. 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

Appellee  was  arrested  as  a  fugitive  from  justice  in  pursuance 
of  the  provision  of  a  treaty  of  extradition  between  Mexico  and 
the  United  States,  and,  after  a  hearing  before  John  H.  Camp- 
bell, judge  of  the  district  court  of  the  first  judicial  district  of 
Arizona,  sitting  as  a  commissioner  in  extradition  proceedings, 
he  was  committed,  on  the  charge  of  forgery  and  the  utterance 
.of  forged  papers,  to  the  custody  of  the  United  States  marshal 
for  Arizona,  to  abide  the  order  of  the  President  of  the  United 
States  in  the  premises.  Upon  his  petition  to  the  Supreme 
Court  of  the  Territory  for  habeas  corpus  he  was  discharged 
from  custody,  and  from  the  judgment  of  the  court  the  case 
is  here  on  appeal. 

The  court  decided  that  the  offense  charged  is  within  the 
terms  of  the  treaty  between  the  United  States  and  Mexico, 
"that  the  committing  magistrate  had  jurisdiction  of  the 
subject-matter  and  the  accused,"  and  that  the  complaint  was 
sufficient.  The  court,  however,  held  that  there  was  not  suffi- 
cient legal  evidence  to  establish  the  fact  of  forgery,  and  that, 
therefore,  "the  judge  of  the  district  court  exceeded  his  juris- 
diction in  holding  the  petitioner  (appellee)  for  extradition." 
This  ruling  constitutes  the  question  in  the  case. 

The  complaint,  summarized,  is  that  Ramirez  forged  certain 
railroad  wheat  certificates,  which  purported  to  have  been 
issued  by  the  Southern  Pacific  Company  to  show  the  true 
weight  of  certain  carloads  of  wheat  shipped  from  the  United 
States  to  Mexico,  and  had  the  further  purpose  to  show  the 
amount  of  custom  duties  to  be  paid  to  Mexico.  The  certifi- 
cates, in  order  to  appear  authenticated,  it  is  alleged,  purported 
and  were  intended  to  show,  that  they  were  signed  or  sealed 
or  stamped  by  the  railroad  company  with  a  seal  or  stamp  con- 
taining the  words  "Gross  Weight,  Tare,  Net  Weight,"  and 
that  the  true  gross,  tare  and  net  weight  of  the  wheat  in  each 


400  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

of  the  cars  were  inserted  by  the  company  after  those  words, 
and  that  the  certificates  were  initialed  with  the  letters  "G. 
W.  B." 

It  is  alleged  that  the  certificates  were  not  so  authenticated 
by  the  company  or  any  one  in  its  employ,  and  did  not  show 
the  weight  of  the  wheat,  but  showed  that  there  was  much 
less  than  the  true  weight.  It  is  alleged  also,  with  the  usual 
repetition,  that  Ramirez  forged  the  stamp  and  seal  and  the 
initials  "G.  W.  B.,"  and  did  "use  and  utter"  the  certificates 
and  presented  them  "to  the  custom  house  of  the  government 
of  Mexico  and  the  officials  thereof,"  at  the  town  of  Nogales, 
"as  true  and  genuine  wheat  certificates  of  the  said  railroad 
company,  and  as  showing  the  true  weight  contained  in  the 
said  cars." 

There  were  two  importations  of  wheat  from  Nogales, 
Arizona,  to  Nogales,  Mexico,  in  the  name  of  E.  Ramirez.  The 
manifest  or  request  for  importation  was  made  to  the  proper 
officers  at  Nogales,  Mexico,  in  the  name  of  and  for  E.  Ramirez. 
It  was  the  duty  of  the  Mexican  inspectors  of  customs  to  in- 
spect and  weigh  the  wheat,  in  order  to  compute  the  proper 
amount  of  duties.  One  of  the  importations  was  inspected  by 
one  Manuel  Rosas,  the  other  by  one  Francisco  Enriquez,  both 
of  whom  were  implicated  in  the  prosecution  in  Mexico  for  the 
crimes  of  fraud  against  the  Federal  treasury  and  forgery  of 
private  seals. 

Rosas  testified  that  he  examined  the  interior  of  the  cars  in 
a  superficial  manner,  "satisfying  himself  by  opening  a  sack 
that  said  cars  contained  the  merchandise  represented."  He 
did  not  weigh  the  merchandise,  because  it  came  billed  in 
carload  lots,  and  "did  not  come  designated  as  to  so  many 
bundles,  and  also  because  the  custom  house  lacked  the  proper 
scale  facility."  He  testified  that  "the  railroad  of  Sonora 
issued  to  the  applicants  a  ticket  with  the  seal  of  the  office 
without  any  signature,  bearing  thereon,  indicated  in  lead 
pencil  writing,  the  number  of  the  respective  cars,  the  net 
weight,  and  the  gross  weight.    It  was  so  done  in  this  case, 


ELIAS  V.  RAMIREZ.  401 

215  U.  S.  Opinion  of  the  Ck>urt. 

that  he  compared  the  data  upon  the  tickets  with  reference 
notes  with  those  presented  by  the  customs  agent,  and,  finding 
them  to  correspond  with  each  other,  he  had  no  objection  in 
authorizing,  over  his  own  signature,  the  correctness  of  the 
same  and  order  it  'dispatched/  "  As  soon  as  the  tickets,  he 
further  testified,  are  compared  with  the  applications  they  are 
destroyed,  and  that  he  did  not  know  what  had  become  of 
them  in  this  case.  He  further  testified  that  the  applications 
were  delivered  to  him  by  the  custom  house  collector,  which 
applications  manifested  the  weight  of  the  merchandise  to  be 
imported,  and,  "this  being  done,  the  manifest  passed  into  the 
possession  of  the  revisors,  who  solicit  the  railroad  ticket  from 
the  interested  parties  for  the  purpose  of  verifying  the  respec- 
tive comparisons."  The  person  of  whom  he  "asked  for  the 
tickets  was  Mr.  Manuel  Ramirez,  who  was  in  charge  of  the 
customs  department  of  the  house."  Further  tcstif)dng,  he 
said  that  he  did  not  know  the  origin  of  the  tickets  "  by  their 
form  of  writing;"  that  he  did  not  find  in  any  of  them  any 
erasures  nor  any  trace  of  alteration,  and  could  not  tell  "  even 
vaguely  the  name  of  the  employes  who  wrote  the  tickets;" 
that  he  did  not  know  whether  any  person  was  present  "when 
the  corresponding  tickets  were  deUvered  to  him;"  that  he 
had  no  knowledge  from  "private  sources  or  otherwise  of 
Mr.  Cerilo  Ramirezes  connection  with  the  customs  agency 
that  operates  under  his  name."  He  recognized,  from  the 
books  of  the  railroad  exhibited  to  him,  the  seals  to  be  the 
same  used  by  the  company  to  express  the  weight,  not  recol- 
lecting having  personally  seen  the  books.  Explaining  how 
he  "erred,"  he  testified  that  it  was  because  he  did  not  go  per- 
sonally to  the  oflBces  of  the  railroad  to  compare  the  true  weight 
at  those  offices,  but  instead  relied  on  the  tickets  presented 
by  Manuel  Ramirez,  "which  were  forged,  in  the  sense  that  the 
said  Ramirez  personally  or  in  accord  with  some  employ^  of 
the  railroad"  forged  the  tickets,  "making  use  of  the  seals  of 
the  railroad." 
Francisco  Enriquez  testified  substantially  to  the  same 
VOL.  ccxv — 26 


402  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  SL 

effect,  though  in  some  parts  more  fully.  He  testified  that  the 
tickets  came  approved  by  Mr.  G.  W.  Bowman,  chief  of  the 
station  of  the  Sonora  Railroad.  He,  however,  did  not  know, 
he  said,  the  handwriting  of  Bowman  "  to  the  extent  of  being 
able  to  identify  the  same  to  a  certainty,"  because  "the  tickets 
in  question  only  bring  numbers,  made  in  great  haste,  setting 
forth  the  number  of  the  car,  the  gross  weight,  the  net  weight, 
and  the  tare  calculated  in  pounds,"  of  which  he  "made  the 
computation  into  kilos." 

Ignacio  Alleo  testified  that  he  was  a  private  employ^  of  the 
firm  under  investigation,  and  served  for  five  years  as  freighter 
for  the  firm  or  house;  that  his  duty  was  to  receive  the  loose 
freight  from  the  American  side,  delivered  to  him  at  Nogales, 
Arizona,  to  place  the  same  in  the  cars  which  convey  it  south ; 
that  in  doing  so  he  takes  note  of  the  number  of  bundles, 
marks,  countermarks,  weights  and  other  memoranda  which 
serve  to  form  the  applications  for  shipment;  that  said  data 
are  made  on  loose  papers,  which  he  delivers  to  Manuel  Ra- 
mirez, who  makes  out  the  applications  for  shipment;  that 
"Ramirez  is  also  occupied  in  making  the  applications  for 
exportation,  reimportation,  more  properly  exportation;"  that 
he,  the  witness,  had  no  other  connection  with  the  direct  im- 
portation than  to  copy  some  applications  for  shipment;  that 
when  he  came  to  the  house,  five  years  ago,  Manuel  Ramirez 
had  been  serving  the  house  for  a  long  time,  and  that  Ramirez 
had  "personal  charge  of  the  dealings  with  the  employes  of 
the  custom  house,  all  relative  to  importations;"  that  the  head 
person  in  charge  of  the  office  "was  Eduardo  Ramirez,  who 
had  full  power  to  act  from  the  owner  of  the  business,  Cerilo 
Ramirez;  that  up  to  three  years  ago  Alberto  Masarenas  kept 
the  accounts  of  the  house,  since  then  he  did  not  know  who 
had,  but  that  the  cash  accounts,  he  understands,  were  kept 
by  Mr.  Escobara." 

Ignacio  Escobara  had  testified  before,  but  he  would  not 
ratify  his  former  testimony  in  all  respects,  he  said,  because  it 
was  given  "under  the  belief  that  his  gratitude  towards  his 


ELIAS  V,  RAMIREZ.  403 

215  U.  S.  Opinion  of  the  Court. 

employer  compelled  him  to  do  so,"  and  that  after  mature 
consideration  he  realized  that  he  was  not  required  "to  tell 
an  imtruth  in  a  proceeding  which  may  stain  his  honor,  and 
for  that  reason  he  was  disposed  to  tell  the  truth."  And  he 
testified  that  from  the  beginning  of  the  proceeding  against 
Messrs.  Campello  he  noticed  the  greatest  uneasiness,  excite- 
ment and  fear  in  Eduardo  Ramirez,  Luis  Bartning  and  Cerilo 
Ramirez;  from  that  time  they  began  to  prepare  themselves, 
"fearing  to  become  involved  in  the  same  manner  as  Messrs. 
Campello  and  associates;  that  he  plainly  noticed  the  attitude 
of  the  above  gentlemen  and  the  danger  in  which  they  were." 
He  further  testified  that  "he  saw  and  noticed  their  con- 
duct, as  well  as  listening  to  their  conversation,"  and  that 
"the  manner  of  preparing  themselves  consisted  in  making  up 
packages  of  correspondence  and  documents  carefully  selected 
and  packed  in  a  wooden  box  which  stood  in  a  patio  or  court 
during  the  day  and  disappeared  at  night  without"  his  know- 
ing what  became  of  it;  that  he  was  under  the  impression  that 
it  was  taken  to  the  American  side,  not  being  able  to  tell  "  from 
whom  he  heard  it  in  the  office  of  the  firm,"  but  he  believed 
that  he  "heard  it  said  there  in  conversation." 

He  further  testified  that  the  books  of  account  and  the  copy 
books  of  statement  of  expenses  "appeared  and  disappeared 
successively,  being  carried  to  and  fro  by  Bartning  personally, 
who  was  the  bookkeeper;"  that  at  the  beginning  of  Campello's 
investigation,  Alleo  confe^ed  to  him  that  the  house  was  very 
much  involved  in  the  same  manner  as  were  Messrs.  Campello; 
that  the  person  in  charge  of  all  transactions  was  Manuel 
Ramirez;  that  Bartning  is  the  brother-in-law  of  Ramirez, 
"with  whom  he  is  strongly  tied  in  business;  the  head  of  the 
institution  is  Cerilo  Ramirez,  who  commands  as  supreme 
principal  and  owner  of  the  establishment,  and  as  such  daily 
attends  said  oflSce,  watching  carefully  the  affairs  and  progress 
of  the  house;  during  the  absence  of  Cerilo  his  brother  Eduardo 
directs  the  house  and  is  recognized  by  all  as  second  chief,  and 
as  Cerilo  was  tried  for  smuggling  and  his  signature  is  not 


404  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

accepted  in  custom  house  dealings,  all  official  documents  are 
signed  by  Eduardo  Ramirez  in  his  own  name  or  through  an 
agent  representing  himself  in  the  documents  as  a  custom  house 
broker."  He  testified  further  that  he  "was  told  from  the 
beginning  that  the  cause  of  fear  of  Cerilo  Ramirez  and  his 
associates  in  the  present  case  proceeded  from  a  fraud  com- 
mitted by  them  upon  the  Federal  Treasury  in  like  manner  as 
that  committed  by  Messrs.  Campello,  that  is,  by  false  and 
forged  manifests  of  the  weight  of  carloads  of  wheat  imported 
by  said  house  one  year  ago." 

The  record  shows  that  Cerilo  Ramirez,  "being  present  for 
the  purpose  of  undergoing  a  suppletory  confrontation  with 
Ignacio  Escobara,"  and  with  "that  of  said  Ramirez,"  re- 
ferring apparently  to  some  deposition  or  statement  made  by 
himself  which  is  not  in  the  papers,  stated  that  he  was  "absent 
from  Nogales,  living  in  Lower  California,  and  for  that  reason 
could  not  have  been  present  after  the  detention  of  Campello," 
and  stated  further  th:it  he  was  "therefore  ignorant  of  what 
disposition  had  been  made  of  the  books  of  account,  cor- 
respondence and  documents  of  the  establishment  of  'C. 
Ramirez,'  to  which  Escobara"  referred.  He  denied  that  he 
was  recognized  as  agent  of  the  house,  and  said  that  "if  he  left 
the  name  of  C.  Ramirez  in  the  business  it  was  with  the  object 
of  not  impairing  the  credit  of  the  house,  and  on  account  of  his 
brother  being  concerned,  .  .  .  which  business  he  trans- 
ferred to  his  brother  Eduardo,  without  executing  in  this  case 
any  special  instrument."  And  he  denied  having  had  "previ- 
ous knowledge  of  the  fraud  upon  the  Federal  Treasury." 

Manuel  Ramirez  was  also  put  in  "suppletory  confrontation" 
with  Escobara,  whose  testimony  was  read  to  him,  as  was  that 
of  C.  Ramirez,  and  being  "apprised  of  the  discrepancies  of 
both  depositions,"  said  that  what  Escobara  said  was  "not 
exact"  when  he  said  that  he,  Ramirez,  was  "in  collusion  with 
the  other,  Messrs.  Ramirez,  in  trying  to  conceal  the  books  and 
correspondence  of  the  business."  The  rest  of  his  testimony 
is  as  follows:  "He  does  not  know  where  they  (the  books  and 


ELIAS  V,  RAMIREZ.  405 

215  U.  S.  Opinion  of  the  Court. 

correspondence)  are  and  says  that  their  chief  was  Mr.  Eduardo 
Ramirez,  ignoring  (?)  to  date  if  the  payment  has  been  made 
in  full  of  the  duties  upon  the  importation  of  wheat,  because 
his  duties  were  only  to  draw  the  papers  for  the  importation 
through  the  custom  house." 

He  was  called  upon  a  second  time  to  testify  and  he  was 
asked  if  he  personally  copied  the  tickets  or  memoranda  of 
the  weight  of  the  cars  of  wheat  from  the  sheets  in  which  the 
employes  of  the  railroad  noted  the  weight  of  bundles.  He 
answered  that  sometimes  he  did,  but  not  in  the  present  ca^, 
he  did  not  remember;  that  his  brother  Eduardo  Ramirez  at- 
tended  to  the  loading  and  giving  of  weights,  but  that  he  in  his 
brother's  absence  would  sometimes  attend  to  this  branch. 
And  further,  that  he  could  not  explain  the  discrepancy  be- 
tween the  weights  of  the  bundles  in  question  and  those  shown 
in  the  respective  books  of  the  railroad  company. 

It  appears  that  the  frauds  upon  the  revenue  charged  to 
E.  Ramirez  amounted  to  $11,944.94.  The  depositions  were 
taken  in  proceedings  instituted  in  Mexico  under  its  laws  as  the 
basis  for  an  application  for  the  extradition  of  Eduardo 
Ramirez,  and  were  attested  by  the  officers  of  the  tribunal  to 
whom  the  case  was  assigned,  and  that  tribunal,  after  citing 
the  applicable  law  and  its  conclusion,  and  considering  that 
"  the  corpus  delicti  of  fraud  against  the  Federal  Treasury  and 
undue  use  of  private  seals"  had  been  proved,  and  that  it 
constituted  forgery  under  the  laws  of  Mexico,  and  was  within 
the  provisions  of  the  treaty  between  that  country  and  the 
United  States,  concluded  as  follows:  "Let  a  petition  issue 
with  the  proper  evidence  to  the  Secretary  of  State  and  Foreign 
Affairs,  so  that  through  the  conduct  of  the  diplomatic  agents 
accredited  in  the  neighboring  republic,  steps  be  taken  for  the 
extradition  of  Eduardo  Ramirez,  and  obtaining  the  same,  to 
place  at  the  disposal  of  this  tribunal." 

Appellant  was  commissioned  by  the  Mexican  ambassador 
as  a  proper  person  to  present  to  the  authorities  of  the  United 
States  of  America  a  copy  of  the  warrant  of  arrest  in  the 


406  OCTOBER  TERM,  1909. 

Opinion  of  the  Ck>urt.  215  U.  S. 

United  States  of  Mexico  and  of  the  depositions  upon  which 
the  warrant  was  issued,  and,  as  agent  of  Mexico,  to  "receive 
the  said  Eduardo  Ramirez  from  the  proper  authorities  of  the 
United  States  of  America."  We  shall  not  further  quote  from 
the  papers,  as  there  is  no  question  but  that  requisition  had 
been  duly  made  for  the  extradition  of  Ramirez.  The  evidence 
before  the  district  judge  consisted  of  the  depositions,  together 
with  oral  testimony  that  they  would  be  admissible  in  evidence 
in  the  courts  of  Mexico,  and  in  addition  the  ambassador  to 
Mexico  and  the  charg6  d'affaires  certified  that  they  were 
*' properly  and  legally  authenticated,  so  as  to  entitle  them 
to  be  received  for  similar  purpose  by  tribunals  of  Mexico,  as 
required  by  the  act  of  Congress  of  August  3,  1882."  There 
is  also  in  the  record  a  paper  headed  *'  Statement  of  the  weight 
of  the  carloads  of  wheat  imported  by  Eduardo  Ramirez, 
made  by  this  Federal  tribunal  by  virtue  of  the  data  shown 
in  the  books  of  the  railroads,"  and  a  large  number  of  ex- 
hibits. 

The  district  judge  committed  Ramirez  to  the  custody  of 
the  United  States  marshal  for  the  Territory  of  Arizona,  to 
abide  "the  order  of  the  President  of  the  United  States  of 
America  in  the  premises."  The  writ  of  habeas  corpus  under 
review  was  then  issued  by  the  Supreme  Court  of  the  Territory 
and  appellee  discharged  from  custody.  It  was  ordered,  how- 
ever, that  if  an  appeal  should  be  taken  to  this  court  he  should 
be  remanded  to  the  custody  of  the  marshal,  to  be  released 
upon  giving  bail  in  the  sum  of  $25,000,  under  the  provisions 
of  rule  34.  Bail  was  subsequently  given  and  the  appellee 
discharged  from  custody. 

The  Supreme  Court  of  the  Territory  expressed  the  view 
that  the  writ  of  habeas  corpus  could  not  be  made  ,to  perform 
the  office  of  a  writ  of  error,  and  that,  therefore,  if  the  district 
judge  had  jurisdiction  of  the  subject-matter  and  of  the  ac- 
cused and  the  ofiFense  charged  was  within  the  terms  of  the 
treaty  of  extradition,  and  there  was  before  him  "competent 
legal  evidence  on  which  to  exercise  his  judgment  as  to  whether 


ELIAS  V.  RAMIREZ.  407 

216  U.  S.  Opinion  of  the  Court. 

the  facts  are  sufficient  to  establish  the  criminality  of  the 
accused  for  the  purpose  of  extradition,  such  decision  cannot 
be  reviewed  on  habeas  corjyusJ^  The  court  cited  Omdas  v. 
Ruiz,  161  U.  S.  502,  508,  and  Bryant  v.  United  States,  167 
U.  S.  104.  And  considering  further  the  extent  of  a  court's 
power  of  review  over  the  judgment  of  the  committing  magis- 
trate upon  the  facts,  said,  *'but  such  court  is  not  to  inquire 
whether  the  legal  evidence  of  facts  before  the  commissioner 
was  sufficient  or  insufficient  to  warrant  his  conclusion,"  citing 
In  re  Stupp,  12  Blatch.  501;  Omdas  v.  Ruiz,  supra,  and  Ter- 
linden  v.  Ames,  184  U.  S.  270.  The  cases  cited  establish  the 
propositions  expressed  by  the  court,  but  the  learned  court's 
application  of  them  to  the  facts  of  this  record  is  challenged. 
The  court  expressed  the  opinion  that  all  of  the  conditions  of 
commitment  were  established,  except  that  there  "was  no 
competent  legal  evidence  of  the  fact  of  forgery  itself  of  the 
documents  in  question."  That  is,  that  there  was  no  legal 
evidence  of  the  forgery  of  what  are  called  in  the  complaint 
"railroad  wheat  certificates"  and  "tickets"  in  the  depositions 
of  the  witnesses.  We  are  unable  to  agree  to  this  conclusion. 
They  were  either  forged  or  issued  by  mistake,  and  the  sup- 
position of  a  mistake  is  precluded  by  the  evidence.  The 
books  of  the  railroad  showed  the  true  weights;  the  mistake  or 
forgery  was  in  the  certificates  or  tickets.  Exclude  the  former 
and  forgery  is  established.  If  a  mistake  was  made,  it  is  cer- 
tainly strange  that  it  should  have  escaped  notice  until  the 
Mexican  treasury  had  been  defrauded  of  $11,944.94.  Besides, 
the  reparation  for  a  mistake  was  payment  of  the  amoimt  in 
default,  not  by  flight  from  the  accusation  of  forgery  and 
crime.  Then,  too,  ample  opportunity  *was  given  in  Mexico 
to  explain  the  certificates,  but  explanation  was  not  attempted. 
It  was  not  attempted  in  Arizona,  and  from  these  negative 
circumstances,  as  well  as  from  the  positive  testimony  of  the 
witnesses,  it  certainly  cannot  be  said  that  there  was  substan- 
tially no  evidence  to  justify  the  judgment  of  the  commis- 
sioner that  a  crime  had  been  committed,  and  as  little  can  it 


408  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

be  said  that  there  was  not  probable  cause  to  believe  that  the 
accused  had  committed  it.  We  have  set  out  the  evidence 
somewhat  fully.  It  shows  that  the  Mexican  treasury  was  de- 
frauded by  the  "House  of  Ramirez"  of  $11,944.94,  and  that 
appellee  was  "second  chief"  of  the  house  and  the  one  to  whom 
C.  Ramirez  had  transferred  it.  It  appears,  therefore,  that 
he  was  the  principal,  if  not  the  only  beneficiary,  of  the  fraud. 
It  is  true  that  Manuel  Rosas  and  Francisco  Enriquez,  the 
custom  house  re  visors,  stated  that  they  received  the  "tickets" 
from  Manuel  Ramirez;  but  from  the  testimony  of  the  latter 
and  other  evidence  it  may  be  reasonably  concluded  that  ac- 
cused acted  in  conjunction  with  him,  in  fact,  prepared  and 
directed  the  whole  affair.  It  is  certainly  not  out  of  the  bounds 
of  reason  to  suppose  that  he  who  was  benefited  by  the  fraud 
contrived  and  executed  it,  and  not  his  subordinate  or  employ^. 
It  is,  however,  objected  that  there  is  no  evidence  in  the  rec- 
ord "tending  in  any  way  to  prove  that  any  of  the  alleged  cer- 
tificates were  forged  or  altered  or  changed  by  any  person 
whatsoever."  Indeed  it  is  asserted  by  the  appellee  "that 
the  evidence,  so  far  as  it  proves  or  tends  to  prove  anything, 
proves  that  the  certificates  were  genuine  certificates  issued  by 
G.  W.  Bowman,  chief  of  the  station  of  the  Sonora  Railroad." 
To  complete  these  contentions  a  reference  is  made  to  the 
complaint,  in  which  it  is  alleged  that  the  certificates,  in  order 
to  appear  authenticated,  purported  to  show  that  they  were 
signed,  sealed  or  stamped  by  the  railroad,  containing  the 
words  gross  weight,  tare,  net  weight,  and  initialed  with  the 
letters  "G.  W.  B.,"  and  if  so  worded  and  initialed  would  have 
been  so  authenticated  as  to  have  shown  true  weight  of  the 
wheat  in  the  cars.  There  is  no  evidence,  it  is  said,  of  these 
allegations,  or  that  it  was  the  duty  of  the  custom  house  officer 
to  accept  any  so-called  weight  certificates  as  evidence  of  the 
true  weight  of  the  wheat  to  be  imported.  It  is  probable  that 
the  Supreme  Court  of  the  Territory  yielded  to  these  conten- 
tions, and  that  they  were  the  basis  of  its  decision  that  there 
was  no  legal  evidence  before  the  commissioner  of  "facts  tend- 


ELIAS  V,  RAMIREZ.  409 

215  U.  S.  Opinion  of  the  Court. 

ing  to  prove  the  commission  of  the  ofiFense  chained,  to  wit, 
the  crime  of  forgery,     .     .     ." 

We,  however,  camiot  concur  in  these  contentions,  and, 
without  going  over  the  evidence  to  show  a  precise  or  tech- 
nical adaptation  of  it  to  the  allegations,  it  is  enough  to  say 
that  we  think  the  evidence  shows  not  only  that  a  crime  was 
committed,  but  shows  its  character  and  by  whom  committed 
with  sufficient  certainty  and  strength  to  satisfy  the  statute 
and  to  justify  the  order  of  the  commissioner  committing  the 
accused  to  await  the  action  of  the  executive  department. 

It  is  further  contended  that  the  statements  of  Rosas  and 
Enriquez  were  imswom  to,  and  because  unsworn  to  were  not 
admissible  in  evidence;  that  "under  the  common  law  and 
the  law  of  Arizona  the  unsworn  statement  of  no  witness  is 
competent  upon  a  preliminary  hearing  before  a  committing 
magistrate,"  and  would  not  justify  a  commitment  for  trial 
in  Arizona.  It  is  hence  contended  that  it  was  not  sufficient 
to  justify  the  extradition  of  the  appellee.  In  re  Egita,  G3 
Fed.  Rep.  972;  In  re  McPhun,  30  Fed.  Rep.  57;  Benson  v. 
McMahon,  127  U.  S.  457,  are  adduced  to  sustain  the  conten- 
tion. The  answer  to  the  contention  is  that  the  statute  pro- 
viding for  extradition  makes  the  depositions  receivable  in 
evidence  and  provides  that  their  sufficiency  to  establish  the 
crime  shall  be  such  as  to  create  a  probability  of  the  commis- 
sion by  the  accused  of  the  crime  charged  against  him.  This 
is  the  principle  announced  by  the  cases  cited  by  the  appellee. 

Other  contentions  are  made  but  we  do  not  think  that  they 
need  special  mention. 

Order  reversed  and  the  cause  remanded  with  directions  to 
"proceed  in  accordance  with  this  opinion. 


410  OCTOBER  TERM,  1909. 

Argument  for  P]ainti£f  in  Error  and  Appellant.         215  U.  S. 


TIGLAO  V.  INSULAR  GOVERNMENT  OF  THE  PHILIP- 
PINE ISLANDS. 

ERROR  TO   AND   APPEAL   FROM   THE   SUPREME   COURT   OP  THE 

PHILIPPINE  ISLANDS. 

No.  37.    Argued  November  1,  1909. — ^Decided  January  3, 1910. 

Writ  of  error  and  not  appeal  is  the  proper  method  to  bring  up  to  this 
court  a  judgment  of  the  Supreme  Court  of  the  Philippine  Islands  in 
a  case  affecting  title  to  land  in  Court  of  Land  Registration.  Cariho 
V.  Insular  GovemtnerU,  212  U.  S.  449. 

In  this  case  the  grant  involved  was  made  without  authority  by  sub- 
ordinate officials,  was  void  ab  initio^  and  conveyed  no  title  to  the 
original  grantee  or  those  holding  under  him. 

A  man  cannot  take  advantage  of  his  ignorance  of  the  law,  and  where 
all  that  is  done  to  give  him  a  title  is  insufficient  on  its  face,  the 
grantee  is  chargeable  with  knowledge,  does  not  hold  in  good  faith, 
and  in  such  a  case  prescription  does  not  run  from  the  date  of  the 
instrument  under  which  he  claims. 


The  facts  are  stated  in  the  opinion. 

Mr.  Aldis  B.  BrovmCj  Mr.  Alexander  Britton,  Mr.  J.  H. 
Blount  and  Mr.  Evans  Browne  for  plaintiff  in  error  and  ap- 
pellant : 

The  concession  of  1873  made  by  the  Municipal  Board  of 
Mabalacat  did  transmit  to  plaintiff  in  error's  grantor  certain 
rights.  Book  4,  Title  12,  Law  1  of  the  compilation  of  Spanish 
Colonial  Laws  printed  in  1828  in  House  Doc.  No.  121,  20th 
Cong.,  2d  Sess.,  p.  38;  see  also  3  Philippines,  540;  Law  8, 
Book  4,  Title  12,  Laws  of  the  Indies  permitting  applications 
for  land  grants  in  townships  where  there  is  a  court.  As  to 
occupation  ripening  into  title,  see  Solicitor  General's  brief  in 
Canno  Case,  212  U.  S.  449. 


TIGLAO  V.  INSULAR  GOVERNMENT.  411 

215  U.  S.      Argument  for  Defendants  in  Error  and  Appellees. 

Evangdista  v.  Bascos,  5  Philippines^  255,  which  holds  other- 
wise to  contention  of  plaintiff  in  error  is  unsound.  Possession 
under  the  circumstances  of  this  case  confers  title  by  prescrip- 
tion as  against  the  State.  See  Carina  v.  Insular  Government, 
212  U.  S.  449;  Book  4,  Title  12,  Law  14,  Recopilacion  de  Leyes 
de las  Indias;  3d Partida,  Title  XXIX,  Law  18;  §  1957,  Spanish 
Civ.  Code  War  Department,  transl.  1899;  Mortgage  Law  of 
1893.  The  Philippine  Government  Act  of  July  1,  1902,  was 
meant  to  carry  out  in  good  faith  Art.  VIII  of  the  treaty  of 
1898,  and  all  legislation  of  the  United  States  concerning  the 
Philippines  indicates  a  policy  to  protect  all  property  rights 
in  land,  complete  or  inchoate,  existing  at  the  time  of  the  treaty 
and  held  in  good  faith.  As  to  good  faith,  see  §  1950,  Spanish 
Civil  Code  for  Cuba,  Porto  Rico  and  the  Philippines.  In  this 
case  good  faith  cannot  be  questioned.  See  3  Philippines,  540; 
and  royal  order  of  1862,  cited  in  5  Philippines,  548. 

The  original  grantor  took  under  a  valid  grant  and  culti- 
vated the  land  in  dispute  and  some  interest  or  title  must  have 
vested  by  his  occupation.  In  appropriating  this  land  for 
military  purposes,  supposing  that  it  was  for  this  land,  the  au- 
thorities made  a  mistake  and  that  fact  cannot  affect  the 
owner's  interest. 

Under  the  laws  for  town  government  as  stated  in  1  Census 
Report  Phil.  Us.  365,  disposition  of  pueblo  lands  when  ap- 
proved by  the  Parish  Priest  was  sufficient  to  protect  title. 

The  Solicitor  General  and  Mr,  Pavl  Charlton,  Law  Officer, 
Bureau  of  Insular  Affairs,  for  defendants  in  error  and  ap- 
pellees: 

This  court  has  no  jurisdiction  of  the  appeal.  Writ  of  error 
is  the  proper  method  of  bringing  to  this  court  a  case  insti- 
tuted in  the  Court  of  Land  Registration  for  registration  of 
ownership.  Carina  v.  Insular  Government,  212  U.  S.  449,  456. 
Hie  case  being  here  only  upon  writ  of  error,  the  facts  must  be 
accepted  as  found  below. 

This  land  was  royal  domain  when  the  Gobemadorcillo  and 


412  OCTOBER  TERM,  1909. 

Argument  for  Defendants  in  Error  and  Appellees.    215  U.  S. 

Principales  of  the  pueblo  of  Mabalacat  attempted  to  convey 
it  to  Lacson.  There  is  no  evidence  of  proprietorship  of  any 
part  of  the  land  by  the  pueblo  of  Mabalacat.  Under  Spanish 
law  a  pueblo  did  not  become  the  owner  of  any  part  of  the 
royal  domain  unless  special  grant  was  made  to  it  and  the 
extent  and  boundaries  of  the  grant  were  specially  designated 
by  the  proper  granting  authority,  United  States  v.  Santa  Fe, 
165  U.  S.  675,  691;  United  States  v.  Sandoval,  167  U.  S.  278; 
and  even  when  the  lands  were  specially  set  apart  for  a  pueblo 
the  fee  remained  in  the  King. 

Law  1  of  Book  4,  Title  12,  of  the  Laws  of  the  Indies  did  not 
authorize  the  grant  of  1873  to  Lacson.  That  law  relates  only 
to  grants  to  new  settlers  from  such  lands  as  have  been  as- 
signed for  the  new  settlement  as  a  whole  by  the  viceroy,  gov- 
ernor of  the  colony  or  other  representative  of  the  King.  It 
cannot  authorize  a  grant  attempted  long  after  a  town  had 
come  into  existence  and  without  any  connection  with  its 
foundation  or  early  settlement.  The  attempted  grant  to 
Lacson  was  made  200  years  or  more  after  the  island  of  Luzon 
was  made  a  Spanish  colony  and  an  indefinite  time  after  the 
town  of  Mabalacat  arose.  There  is  no  proof  that  Mabalacat 
is  a  town  of  Spanish  foundation  or  that  it  ever  had  any  grant 
of  land  from  which  such  distribution  could  be  made  to  in- 
dividual settlers  imder  Law  1  of  Title  12.  This  law  does  not 
contemplate  or  authorize  a  grant  of  1,200  hectares  (some 
3,000  acres)  such  as  was  made  to  Lacson.  If  Law  1,  Title  12, 
can  apply  at  all  to  this  case,  it  was  necessary  that  the  grant 
to  Lacson  should  be  made  by  the  "  viceroy  or  governor  thereto 
authorized  by"  the  King.  It  did  not  authorize  a  grant  by 
the  gobemadorcillo  and  principales.  The  fact  that  the 
Gobemadorcillo  and  Principales  of  Mabalacat  assumed  to 
make  the  grant  to  Lacson  can  raise  no  presumption  of  their 
authority  to  make  it.  Hayes  v.  United  Staies,  170  U.  S.  637, 
647;  Chavez  v.  United  States,  175  U.  S.  552,  558.  That  the 
viceroy  or  governor  of  the  colony  was  the  propef  granting 
authority  under  Spanish  law,  see  United  States  v.  Arredando, 


TIGLAO  V,  INSULAR  GOVERNMENT.  413 

215  U.  S.      Argument  for  Defendants  in  Error  and  Appellees. 

6  Pet.  691;  United  States  v.  Percheman,  7  Pet.  50;  United 
States  V.  Clarke,  8  Pet.  436;  United  States  v.  Seffuij  10  Pet. 
306;  United  States  v.  Chaires,  10  Pet.  308;  United  States  v. 
Seton,  10  Pet.  309;  United  States  v.  Sibbald,  10  Pet.  313; 
United  States  v.  Rodman,  15  Pet.  130;  United  States  v.  Acosta, 
1  How.  24;  United  States  v.  Peralta,  19  How.  343;  United 
States  V.  TToriman,  1  Wall.  745;  Serrano  v.  United  States, 
5  Wall.  451. 

Law  8  of  Book  4,  Title  12,  of  the  Laws  of  the  Indies  did  not 
authorize  the  Goberaadorcillo  and  Principales  of  Mabalacat  to 
make  the  grant  to  Lacson.  This  law  relates  only  to  grants 
where  the  royal  audiencia  sits.  That  was  only  at  Manila,  until 
February  26,  1886,  when  a  second  audiencia  was  estabUshed 
at  Cebu.  Law  8  is  also  limited  to  grants  of  land  in  a  ciudad 
(city)  or  a  villa.  Mabalacat,  as  a  pueblo,  was  neither  a  ciu- 
dad nor  a  villa.  Law  8  requires  that  the  grant  be  signed  by 
the  viceroy  or  president  and  deputies  "in  the  presence  of  the 
clerk  of  the  cabildo  (council)."  The  grant  to  Lacson  had  no 
such  signature.  This  law  also  requires  that  the  grant  under 
it  "be  recorded  in  the  book  of  the  council.''  The  grant  to 
Lacson  is  not  shown  to  have  been  recorded  anywhere.  Con- 
cerning the  effect  of  absence  of  record  of  a  grant,  see  United 
States  V.  Teschmaker,  22  How.  392,  405;  Loco  v.  United  States, 
23  How.  515,  543;  Palmer  v.  United  States,  24  How.  125,  128; 
Perdia  v.  United  States,  3  Wall.  434,  439;  Hays  v.  United 
States,  175  U.  S.  248,  257,  258;  United  States  v.  Ortiz,  176 
U.  S.  422,  426. 

If  either  Law  1  or  Law  8  authorized  town  oflBicials  to  grant 
royal  lands,  it  was  superseded  by  the  royal  decrees  of  Oc- 
tober 15,  1754,  and  December  4,  1786, — at  least  as  to  agri- 
cultural lands  such  as  comprised  the  attempted  grant  to 
Lacson.  These  decrees  provided  a  systematic  method  of  dis- 
posing of  royal  lands,  and  the  decree  of  1786  gave  exclusive 
jurisdiction  in  such  matters  to  the  intendants  or  perhaps  to 
the  viceroy  or  other  governor  of  the  colony  as  head  of  the 
treasury  or  personal  representative  of  the  King. 


414  OCTOBER  TERM,  1909. 

Oinnion  of  the  Court.  215  U.  8. 

Appellant  acquired  no  title  by  prescription.  The  grant  to 
Lacson  in  1873  did  not  give  just  title,  for  the  Gobemadorcillo 
and  Principales  had  no  authority  to  make  the  grant;  and 
possession  cannot  be  deemed  to  be  in  good  faith  when  it  is 
under  a  grant  void  by  operation  of  law.  Hayes  v.  United 
States,  170  U.  S.  637,  650. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  case  comes  by  writ  of  error  and  appeal  from  a  judg- 
ment of  the  Supreme  Court  of  the  Philippine  Islands,  affirm- 
ing a  judgment  of  the  Court  of  Land  Registration,  which  de- 
nied registration  of  a  tract  of  land.  It  is  admitted  that  the 
facts  as  found  by  the  two  courts  may  be  assumed  to  be  true, 
Reavis  v.  Fiamay  ante,  p.  16;  but  apart  from  the  concur- 
rence of  the  courts  below  the  proper  proceeding  in  a  case  of 
this  kind  is  by  writ  of  error,  and  therefore  the  appeal  is  dis- 
missed. Carino  v.  Insular  Government,  212  U.  S.  449.  So 
much  being  established,  the  grounds  on  which  the  plaintiff 
in  error  can  claim  title  may  be  stated  in  a  few  words.  On 
July  13,  1873,  the  Gobemadorcillo  and  Principales  of  the 
town  of  Mabalac^t  in  the  Province  of  Pampanga,  Luzon, 
executed  an  instrument,  marked  0.  K.  by  the  Parish  Priest, 
purporting  to  grant  the  land,  with  qualifications  not  needing 
to  be  noticed,  to  one  Rafael  Lacson,  under  whom  the  plain- 
tiff in  error  claims.  Possession  was  held  until  1885  and  since 
then  has  been  abandoned.  The  land  was  public  land.  The 
questions  brought  here  were  whether  the  original  grant  was 
valid,  or,  if  not,  whether  the  possession  that  followed  it  with- 
out interruption  for  ten  years  and  more  conferred  title  by 
prescription  under  the  royal  decree  of  June  25,  1880.  This 
decree  states  the  rule  of  prescription  in  the  usual  terms  of 
the  civil  law.  It  confers  ownership  on  those  who  shall  estab- 
lish that  they  have  possessed  the  lands  in  question  for  the 
requisite  time  under  just  title  and  in  good  faith.  See  Civil 
Code.    Arts.  1952,  1953,  1957. 


TIGLAO  V.  INSULAR  pOVERNMENT.  415 

216  IT.  S.  Opinion  of  the  Ck>urt. 

As  we  understand  the  later  briefs  filed  in  behalf  of  the  plain- 
tiff in  error,  the  vain  attempt  to  justify  the  grant  under  the 
Recopilacion  de  Leyes  de  las  Indias,  Book  4,  Title  12,  Law  1, 
is  given  up,  and  therefore  we  shall  spend  no  time  upon 
that.  There  is,  however,  an  effort  to  support  it  under  a 
decree  of  January  4,  1813.  1  Reynolds,  Spanish  &  Mexican 
Land  Laws,  83.  This  was  a  scheme  of  the  Cortes  to  reduce 
public  and  crown  lands  to  private  ownership,  after  reserv- 
ing one-half  for  the  public  debt.  When  certain  preliminaries 
had  been  accomplished,  as  to  which  we  have  no  informa- 
tion, the  other  half  was  to  be  allotted  in  the  first  place  to 
retired  oflBcers  and  soldiers  who  had  served  in  the  present 
war,  &c.,  as  a  patriotic  reward.  Of  the  remaining  land  there 
was  to  be  given,  gratuitously  and  by  lot,  to  every  resident 
of  the  respective  towns  who  applied,  a  tract,  under  certain 
limitations.  The  proceedings  on  these  grants  were  to  be  had 
by  the  constitutional  common  councils,  and  the  provincial 
deputations  were  to  approve  them.  Although  this  decree 
purported  to  apply  to  crown  lands  'in  the  provinces  beyond 
the  sea'  as  well  as  to  those  in  the  peninsula,  it  would  seem, 
on  the  face  of  it,  to  have  been  intended  for  Spaniards,  and  to 
have  had  but  doubtful  reference  to  the  ndtives  of  conquered 
territory. 

But  there  are  other  answers  to  the  suggestion  that  are  free 
from  doubt.  The  decree  has  been  said  to  have  been  repealed 
in  the  following  year.  United  States  v.  Clarke,  8  Peters,  436, 
455.  Hall,  Mexican  Law,  48.  But  compare  United  States  v. 
VaUeio,  1  Black,  541.  Hayes  v.  United  States,  170  U.  S.  637, 
653,  654.  But  even  if  it  be  assimied,  as  it  is  by  the  argument 
for  the  plaintiff  in  error,  that  either  that  or  later  legislation 
to  similar  effect  instituted  a  working  system  in  the  Philip- 
pines, a  large  assumption,  it  is  admitted  that  the  conditions 
of  the  supposed  gratuity  were  not  fulfilled.  Our  attention  has 
not  been  called  to  any  law  giving  authority  to  the  ill-defined 
body  that  attempted  to  make  the  grant.  The  land  was  not 
distributed  by  lot,  and  the  essential  requirement  of  approval 


416  OCTOBER  TERM,  1909. 

ODinion  of  the  Court.  215  17. 8. 

by  a  higher  authority  was  wholly  neglected.  In  view  of  the 
admission  to  which  we  have  referred  we  find  it  unnecessary 
to  follow  the  learned  and  able  argument  of  the  Solicitor- 
General.  There  is  a  hint,  to  be  sure,  that  the  grant  may  be 
presumed  to  have  satisfied  native  custom  and  may  be  sus- 
tained upon  that  ground.  But  such  a  notion  would  be  a 
mongrel  offspring  of  Spanish  law  and  ignorance,  and  no 
reason  is  given  for  making  the  presumption  other  than  a 
guess.  Unauthorized  grants  of  public  lands  by  subordinate 
officials  seem  to  have  been  a  noticeable  feature  in  other 
Spanish  colonies.  Whitney  v.  United  Stales,  181  U.  S.  104, 
114,  115.  The  real  object  of  the  reference  to  the  decree  of 
1813  is  to  found  a  claim  of  prescription  by  showing  a  just 
title  for  the  possession  which  is  proved  to  have  been  main- 
tained for  ten  years. 

Lacson,  the  original  grantee,  held  the  land  until  1881,  when 
he  conveyed  it  to  Pedro  Carrillo  and  his  wife.  Possession  was 
abandoned  in  1885  without  further  change  of  title.  ,  There- 
fore the  only  'just  title'  to  which  the  possession  can  be  re- 
ferred is  the  original  grant.  The  phrase  justo  titulo  is  ex- 
plained to  mean  a  title  such  as  to  transfer  the  property, 
Schmidt,  Civil  Law  of  Spain  and  Mexico,  289,  290;  see  Par- 
tidas,  1. 18,  T.  29,  P.  3;  or  as  it  is  defined  in  the  Civil  Code  of 
a  few  years  later  than  the  decree  of  1880,  "that  which  le- 
gally suffices  to  transfer  the  ownership  or  property  right,  the 
prescription  of  which  is  in  question."  §  1952.  Of  course 
this  does  not  mean  that  the  titvlo  must  have  been  effective 
in  the  particular  case,  for  then  prescription  would  be  unnec- 
essary. We  assume,  for  instance,  that  if  a  private  person  in 
possession  of  crown  lands,  seeming  to  be  the  owner,  executed 
a  formally  valid  conveyance  under  which  his  grantee  held, 
supposing  his  title  good,  possession  for  ten  years  might  create 
an  indisputable  right.  But  if  the  public  facts  known  by  the 
grantee  showed  that  the  conveyance  to  him  was  void,  we 
understand  that  it  would  not  constitute  a  starting  point  for 
the  running  of  time,  and  that  the  grantee's  actual  belief 


MINNEAPOLIS  v.  STREET  RAILWAY  CO.      417 
215  U.  S.  Syllabus. 

would  not  help  his  case.  Indeed,  in  such  a  case  he  would  not 
be  regarded  as  holding  in  good  faith,  within  the  requirement 
of  the  decree,  because  a  man  is  not  allowed  to  take  advantage 
of  his  ignorance  of  law.  The  subject  is  fully  expoimded  in 
Hayes  v.  United  States,  170  U.  S.  637,  650  et  seq. 

All  that  was  done  to  give  Lacson  a  lawful  title  was  insuffi- 
cient on  its  face.  Therefore,  on  the  facts  known  to  him  he 
was  chargeable  with  knowledge  that  he  had  acquired  no  legal 
rights,  and  it  was  impossible  that  the  period  of  prescription 
should  begin  to  run  from  the  date  of  the  instrument  under 
which  he  claimed.  The  possession  of  Carrillo  and  his  sue- 
cessors,  after  the  conveyance  to  him  in  1881,  was  not  main- 
tained for  ten  years,  and  therefore  the  claim  of  the  plaintiflf 

in  error  must  fail. 

Judgment  affirmed. 
••* 

CITY  OF  MINNEAPOLIS  v,  MINNEAPOLIS  STREET 

RAILWAY  COMPANY. 

APPEAL  FROM  THE  CIRCUIT  COURT  OF  THE   UNITED  STATES 

FOR  THE  DISTRICT   OF  MINNESOTA. 

No.  46.    Argued  December  2,  3, 1909. — Decided  January  3, 1910. 

This  court  will  consider  the  nature  of  a  corporation  organized  under 
a  state  law  only  so  far  as  may  be  necessary  to  determine  Federal 
rights. 

Franchises  to  public  service  corporations  will  not  be  extended  by  im- 
plication, but  whatever  is  plainly  and  legally  granted  is  protected 
by  the  contract  clause  of  the  Constitution. 

Where  the  corporate  existence  has  been  recognized  after  the  expiration 
of  the  shorter  period  and  the  State  has  not  moved  in  quo  warranto, 
a  franchise  legally  granted  by  municipal  ordinance  and  legislative 
enactment  for  the  life  of  the  charter  of  a  public  service  corporation 
cannot  be  impaired  during  the  term  specified  in  the  charter  filed 
before  the  grant  was  made,  although  such  term  be  longer  than  that 
allowed  by  the  act  under  which  the  corporation  was  organized. 

A  franchise  contract  may  extend  beyond  the  life  of  the  corporation 
to  which  it  is  granted ;  at  the  end  of  the  corporate  life  it  is  a  divisible 
asset. 

VOL.  CCXY — 27 


418  OCTOBER  TERM,  1909. 

Argument  for  Appellants.  215  IT.  S. 

An  ordinanoe  enacted  before  electricity  was  used  as  motive  power 
prohibiting  any  power  that  would  be  a  public  nuisance  will  not  be 
construed  as  excluding  electricity>  and  a  public  service  corporation 
accepting  an  ordinance  permitting  change  from  horse  to  electric 
power  does  not  abandon  its  rights  under  the  original  ordinance  so 
that  they  are  no  longer  protected  by  the  contract  clause  of  the 
Constitution. 

Where  all  that  is  necessary  is  to  determine  whether  a  right  under  a 
state  charter  is  now  in  existence,  the  decree  should  be  confined 
thereto,  and  should  not  attempt  to  determine  the  further  duration 
of  the  charter  under  state  statutes. 

Waiver  to  a  reasonable  extent  of  certain  privileges  under  a  franchise 
does  not  withdraw  the  other  privileges  from  the  protection  of  the 
contract  clause  of  the  Constitution. 

The  ordinance  granted  by  the  city  of  Minneapolis,  in  1875,  to  the 
Minneapolis  Street  Railway  for  the  life  of  its  charter  continues 
for  fifty  years  from  1873,  when  the  corporation  was  organized,  and 
the  fare  cannot  be  reduced  during  that  period  below  five  cents';  and 
the  ordinance  of  1907,  directing  the  sale  of  six  tickets  for  twenty- 
five  cents  is  void  under  the  contract  clause  of  the  Constitution. 

The  facts,  which  involve  the  franchise  of  the  Minneapolis 
Street  Railway  Company  and  whether  the  obligation  of  its  eon- 
tract  was  impaired  by  a  subsequent  ordinance,  requiring  it  to 
sell  six  tickets  for  twenty-five  cents,  are  stated  in  the  opinion. 

Mr.  William  A.  Lancaster,  with  whom  Mr.  Frank  Healy 
and  Mr,  John  F.  McGee  were  on  the  brief,  for  appellants : 

The  corporation  was  organized  in  1873  under  Title  II  and 
not  Title  I  of  Ch.  34,  Minn.  Revision  of  1866,  as  amended  in 
1868  and  1873 ;  the  life  of  the  charter  was  necessarily  linodted  to 
thirty  years,  and  contract  rights,  if  any  existed,  terminated  in 
1903,  as  they  were  limited  to  the  term  of  the  charter.  In  fact, 
the  provisions  of  Title  I  repel  the  idea  that  §  1  was  intended 
to  authorize  the  formation  of  street  railway  corporations. 

The  word  "railroad"  or  "railway"  as  used  in  Title  I  in- 
cludes only  commercial  steam  railroads  and  does  not  include 
street  railways  which  fall  under  the  head  of  transportation 
as  used  in  Title  II.  Manhattan  Trust  Co.  v.  Sioux  City  Coble 
Ry.,  68  Fed.  Rep.  82;  Williams  v.  Railway  Co.,  41  Fed.  Rep. 


MINNEAPOLIS  v,  STREET  RAILWAY  CO.        419 
215  U.  S.  Argument  for  Appellants. 

556;  Chap.  5,  McClain's  Iowa  Code;  Sears  v.  MarshaUtown 
St.  Ry.  Co,,  65  Iowa,  742;  Fidelity  Trust  Co.  v.  Douglass,  73 
N.  W.  Rep.  1039;  Mass.  Trust  Co.  v.  Hamilton,  88  Fed.  Rep. 
588;  Sutherland  on  Stat.  Con.,  §  241;  Freiday  v.  Sioux  City 
Co.,  60  N.  W.  Rep.  656;  Thompson  v.  Simon,  20  Oregon,  60. 

A  general  term  will  be  given  a  restricted  construction  when 
other  provisions  in  the  same  section  point  unmistakably 
thereto.  Dider  v.  EstiU,  22  S.  E.  Rep.  622;  Railway  Co.  v. 
Cedar  Rapids,  76  N.  W,  Rep.  728;  Trust  Co.  v.  Warren,  121 
Fed.  Rep.  323. 

The  ordinances  of  1875,  and  1878,  as  ratified  by  the  legisla- 
ture in  March,  1879,  do  not  constitute  a  contract  for  the  life 
of  the  charter  that  the  street  railway  company  can  always 
charge  five  cents  whether  operated  as  a  horse  or  an  electric 
road.  That  right  only  extended  so  long  as  it  was  operated  as 
a  horse  railroad.  Omaha  Horse  Ry.  v.  Cable  Co.,  30  Fed.  Rep. 
324.  Grants  of  this  natiu-e  are  construed  strictly  for  the  pub- 
lic interests.  Perrine  y.  Canal  Co.,  9  How.  172;  Charles  River 
Bridge  v.  Warren  Bridge,  11  Pet.  422;  Bridge  Proprietors  v. 
Hoboken,  1  Wall.  116;  Indianapolis  Cable  Ry.  v.  Citizens*  Ry., 
127  Indiana,  369;  Railway  v.  Denver  City  Ry,,  2  Colorado, 
673;  Third  Ave.  Ry.  v.  Newton,  1  N.  Y.  Supp.  197;  NoHh 
Chicago  Ry.  v.  Lakeview,  105  Illinois,  207;  Stein  v.  Bienville 
Water  Co.,  34  Fed.  Rep.  145;  affirmed,  141  U.  S.  67;  Gas  Light 
Co.  V.  Saginaw,  28  Fed.  Rep.  529;  Water  Co.  v.  KnoxviUe,  189 
U.  S.  434;  Slidell  v.  Grandjean,  111  U.  S.  412;  Coosaw  Mining 
Co.  v.  South  Carolina,  144  U.  S.  550;  Stanislaus  County  v.  Ir- 
rigalion  Co.,  192  U.  S.  201 ;  Owenshoro  v.  Waterworks  Co,,  191 
U.  S.  358;  Telephone  Co.  v.  Los  Angeles,  211  U.  S.  265;  Gaslight 
Co.  v.  Chicago,  194  U.  S.  1;  Minn,  &  St.  L,  Ry.  v.  Gardner, 
177  U.  S.  332;  Turnpike  Co.  v.  Sandfard,  164  U.  S.  578;  Teach- 
out  V.  Street  Railway  Co.,  38  N.  W.  Rep.  145.  These  cases 
hold  that  a  horse  street  railway  and  an  electric  street  railway 
are  separate  and  distinct;  that  there  was  reserved  to  the  city 
full  power  to  grant  to  any  other  corporation  the  right  to 
build  and  operate  an  electric  road;  and  that  as  the  ordinance 


420  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

of  1907  related  to  an  electric  road  it  does  not  impair  the  con- 
tract, if  any,  with  the  company  operating  a  horse  railroad. 

The  right  to  make  such  ordinance  was  mider  the  general 
reserved  power  of  the  city  and  State,  and  all  such  grants  are 
to  be  construed  liberally  for  the  public  under  the  reserved 
powers.  Woier  Co,  v.  Freeport,  180  U.  S.  587.  Corporations 
accept  such  grants  subject  to  all  reservations.  Telephone 
Co.  V.  Richmond,  98  Fed.  Rep.  671;  S.  C,  103  Fed.  Rep.  31; 
Detrait  v.  Railway  Co.,  185  U.  S.  388;  Path  v.  Tower  Grave 
Ry.,  16  S.  W.  Rep.  913;  General  Ry.  Co.  v.  Chicago,  52  N.  E. 
Rep.  880;  Blair  v.  Chicago,  201  U.  S.  487;  Jackson  Ry.  Co.  v. 
Interstate  Ry.  Co.,  24  Fed.  Rep.  306;  Commonwealth  v.  RaH- 
way,  27  Pa.  St.  339.  And  see  21  Pa.  St.  22;  Farrell  v.  Railway 
Co.,  61  Connecticut,  127;  Endlich  on  Interpretation,  §354. 

Public  policy  does  not  permit  unnecessary  inference  of  au- 
thority to  make  a  contract  which  affects  the  continuance  of  the 
sovereign  power  and  duty  to  make  such  laws  as  public  welfare 
may  require.  Long  v.  DuLuth,  49  Minnesota,  281;  Georgia 
Banking  Co.  v.  Smith,  128  U.  S.  174;  SUme  v.  Trust  Co.,  116 
U.  S.  307,  326.  See  also  Fanning  v.  Gregoire,  16  How.  530; 
Gaslight  Co.  v.  Middletown,  59  N.  Y.  229;  Mintum  v,  Larue, 
23  How.  435;  Hoffmann  v.  Quincy,  4  Wall.  435;  AlcoU  v. 
Supervisors,  16  Wall.  678;  Waier  Co.  v.  Syracuse,  116  N.  Y. 
167;  Indianapolis  Ry.  Co.  v.  Street  Railway  Co.,  127  Indiana, 
369;  EUiott  on  Roads  and  Streets,  2d  ed.,  §  736;  Electric  Ry. 
Co.  V.  Cleveland,  204  U.  S.  116. 

The  burden  is  on  appellee  to  show  the  existence  of  the 
contract. 

Mr.  M.  B.  Koon,  with  whom  Mr.  N.  M.  Thygeson  and 
Mr.  M.  D.  Munn  were  on  the  brief,  for  appellee. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  of  the  Circuit  Court  of  the 
United  States  for  the  District  of  Minnesota,  enjoining  the  city 


MINNEAPOLIS  v,  STREET  RAILWAY  CO.       421 
215  17. 8.  Opinion  of  the  Court. 

of  Minneapolis  from  enforcing,  as  against  the  Minneapolis 
Street  Railway  Company,  appellee,  a  certain  ordinance  of  the 
city  of  Minneapolis,  passed  February  9,  1907,  prescribing  the 
rate  of  fare  for  the  transportation  of  passengers  over  any  street 
railway  line,  or  lines,  of  the  company  in  the  city  of  Minne- 
apolis. 

The  case  was  tried  upon  amended  bill  and  answer.  The 
ground  alleged  for  injunction  in  the  amended  bill  was  in  sub- 
stance that  the  ordinance  of  February  9,  1907,  violated  the 
terms  of  a  previous  and  subsisting  contract,  prescribing  the 
rates  of  fare  to  be  charged  by  the  company  in  the  city  of 
Minneapolis.  It  appears  in  the  record  that  the  ndlway  com- 
pany was  organized  on  July  1,  1873,  and  that  its  alleged  con- 
tract arises  from  an  ordinance  of  the  city  of  Minneapolis  passed 
July  9, 1875,  ratified  by  an  act  of  the  legislature  of  the  State  of 
Minnesota  passed  March  4,  1879.  We  shall  have  occasion  la- 
ter on  to  deal  more  specifically  with  this  ordinance  and  ratify- 
ing act. 

It  is  sufficient  for  the  present  purpose  to  say  that  it  is  the 
contention  of  the  company  that  by  the  ordinance  of  July  9, 
1875,  and  the  ratifying  act,  it  became  the  owner  of  an  irrepeal- 
able  contract  for  the  term  of  fifty  years  from  the  date  of  its 
organization,  by  the  terms  of  which  it  had  the  right  to  charge 
a  fare  not  exceeding  five  cents  for  each  person  carried  on  any 
continuous  line  which  might  be  designated  by  the  city  council 
of  the  city,  such  continuous  line,  however,  not  to  exceed  three 
miles  in  length.  The  contract,  it  is  alleged,  is  violated  by  the 
ordinance  of  February  9,  1907,  requiring  the  sale  of  six  tickets 
for  twenty-five  cents. 

The  existence  of  the  alleged  contract  is  denied  by  the  city 
upon  several  grounds.  It  is  urged  that  the  complainant  com- 
pany was  so  organized  that  its  charter,  and  consequently  its 
corporate  life,  expired  thirty  years  after  the  date  of  its  in- 
corporation, that  is,  on  July  1,  1903,  and,  therefore,  its  con- 
tract rights,  ceased  and  terminated  at  that  time.  This  con- 
tention is  based  upon  the  incorporation  of  the  company,  which, 


422  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

it  is  insisted,  could  only  be  under  Title  IV  of  the  laws  of 
Minnesota,  which  includes  transportation  and  other  lawful 
business,  and  limits  corporations  organized  thereunder  to  a 
continuation  for  not  more  than  thirty  years.  Bissell's  Stats, 
of  Minn.  1873,  p.  443. 

It  is  the  contention  of  the  company  that  it  was  organized 
under  Title  I  of  the  laws  of  Minnesota  (Bissell's  Stats.  1873, 
p.  419),  for  a  term  of  fifty  years.  Title  I  is  headed  "Of  corpo- 
rations empowered  to  take  private  property  for  public  uses," 
and  includes  corporations  "for  the  purpose  of  building,  im- 
proving and  operating  railways,  .  .  .  and  all  works  of 
internal  improvement  which  require  the  taking  of  private 
property  or  any  easement  therein."  Pertinent  provisions  of 
Title  I  as  to  incorporation  are  given  in  the  margin.* 

1  Title  I. 

Of  corporations  empowered  to  take  private  property  for  public  uses. 

Sec.  1.  Any  number  of  persons,  not  less  than  five,  may  associate 
themselves  and  become  incorporated  for  the  purpose  of  building, 
improving,  and  operating  railways,  telegraphs,  canals,  or  slackwater 
navigation,  upon  any  river  or  lake,  and  all  works  of  internal  improve- 
ment which  require  the  taking  of  private  property  or  any  easement 
therein. 

Sec.  2.  They  shall  organi2se  by  adopting  and  signing  articles  of 
incorporation,  which  shall  be  recorded  in  the  office  of  the  register  of 
deeds  of  the  county  where  the  principal  place  of  business  is  to  be,  and 
also  in  the  office  of  the  Secretary  of  State  in  books  kept  for  such  pur- 
poses. 

Sec.  3.  .    .    . 

Said  articles  shall  contain: 

First.  The  name  of  the  corporation,  the  general  nature  of  its  busi- 
ness, and  the  principal  place,  if  any,  of  transacting  the  same. 

Second.  The  time  of  commencement  and  the  period  of  continuance 
of  said  corporation. 

Third.  The  amount  of  capital  stock  of  said  corporation,  and  how 
to  be  paid  in. 

Fourth.  The  highest  amount  of  indebtedness  or  liability  to  which 
said  corporation  shall  at  any  time  be  subject. 

Fifth.  The  names  and  places  of  residence  of  the  persons  forming 
such  association  for  incorporation. 


MINNEAPOLIS  v,  STREET  RAILWAY  CO.       423 
215  U.  S.  Opinion  of  the  Court. 

Title  II  is  "Of  corporations  for  pecuniary  profit  other  than 
those  named  in  Title  I."  The  pertinent  parts  of  that  title  are 
given  in  the  margin.^ 

Sixth.  The  names  of  the  first  board  of  directors,  and  in  what  officers 
or  persons  the  government  of  the  corporation  and  the  management  of 
its  affairs  shall  be  vested,  and  when  the  same  are  elected. 

Seventh.  The  number  and  amount  of  the  shares  in  the  capital 
stock  of  said  corporation.     .    .    . 

Sec.  4.  When  articles  are  filed,  recorded  and  published,  as  afore- 
said, the  persons  named  as  corporators  therein  become  a  body  corporate 
[provisions  follow  in  this  section  as  to  management  of  business,  amend- 
ment of  articles  of  incorporation,  etc.]. 

Sec.  5.  No  such  corporation  shall  be  formed  to  continue  more  than 
fifty  years  in  the  first  instance,  but  it  may  be  renewed  from  time  to 
time  for  periods  not  longer  than  fifty  years:  Provided,  that  three- 
fourths  of  the  votes  cast  at  any  regular  election  for  the  purpose  are 
in  favor  of  such  renewal,  and  those  desiring  a  renewal  purchase  the 
stock  of  those  opposed  thereto  at  its  current  value. 

1  Title  IV.  (This  is  Title  II  of  Chapter  XXXIV  of  the  Statutes  of  1866.) 
Of  corporations  for  pecuniary  profit  other  than  those  named  in  Title  I. 
Sec.  98  (45,  as  amended  by  act  of  March  10,  1873).  Any  number  of 
persons  not  less  than  three,  who  have  or  shall,  by  articles  of  agreement 
in  writing,  associate  according  to  the  provisions  of  this  title  under  any 
name  assumed  by  them  for  the  purpose  of  engaging  in  and  carrying 
on  the  business  of  mining,  smelting  or  manufacturing  iron,  copper,  or 
other  minerals,  or  for  producing  the  precious  metals,  or  for  quanying 
and  marketing  any  kind  of  ore,  stone,  slate  or  other  mineral  substance, 
or  for  constructing,  leasing  or  operating  docks,  warehouses,  elevators 
or  hotels,  or  as  a  mutual  savings  fund,  loan  or  building  association, 
manufacturing  gas,  or  for  any  kind  of  manufacturing,  lumbering, 
agricultural,  mechanical,  mercantile,  chemical,  transportation  or  other 
lawful  business,  and  who  have  or  shall  comply  with  the  provisions  of 
this  title,  shall,  with  their  associates,  successors,  and  assigns,  con- 
stitute a  body  corporate  and  politic  under  the  name  assumed  by  them 
in  their  articles  of  agreement;  provided,  no  company  shall  take  a  name 
previously  assumed  by  any  other  company.  Any  mutual  saving  fund, 
loan  or  building  association,  is  authorized  to  loan  funds  and  to  secure 
such  loans  by  mortgage  or  other  security,  and  any  premiums  taken  by 
any  such  association  for  the  preference  or  priority  of  such  loans,  shall 
not  be  deemed  interest  within  the  meaning  of  section  one  of  chap- 
ter twenty-three  of  the  general  statutes.     Any  such  association  is 


424  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

Much  of  the  elaborate  briefs  of  counsel  in  this  case  is  de- 
voted to  a  discussion  of  the  question  of  the  organization  of 
this  corporation,  and  as  to  whether  it  was  under  the  one  title 
or  the  other.  This  is  not  a  proceeding  in  qiu)  warranto^  and  the 
jurisdiction  of  the  Federal  court  rested  upon  the  contention 
that  the  company  has  a  contract  right  protected  from  impair- 
ment by  a  legislative  act  of  the  State.  It  is  only  necessary  to 
examine  the  question  of  the  incorporation  and  organization  of 
the  company  so  far  as  is  required  to  determine  whether  or  not 
this  alleged  contract  right  exists,  and  whether  it  has  been 
violated  by  the  ordinance  of  the  city  of  Minneapolis,  attacked 
in  the  amended  bill. 

There  can  be  no  question  that  the  attempted  incorporation 
of  this  company  was  under  Title  I  of  the  statutes  already  re- 
ferred to.  It  was  incorporated  by  five  persons.  It  states  the 
business  for  which  it  was  formed,  "to  construct  and  operate 

authorized  and  empowered  to  purchase  at  any  sheriff's  or  other  judicial 
sale,  or  at  any  other  sale,  public  or  private,  any  real  estate,  upon 
which  such  association  may  have  or  hold  any  mortgage,  judgment, 
or  lien,  or  other  incumbrance,  or  in  which  such  association  may  have 
an  interest,  and  the  real  estate  so  piu'chased,  to  sell,  convey,  lease, 
or  mortgage  at  pleasure,  to  any  person  or  persons  whatsoever. 

Sec.  99  (46,  as  amended  by  act  of  February  28,  1870).  The  pro- 
visions of  sections  two,  three,  four,  seven,  eight,  nine,  ten,  eleven, 
forty-two,  and  forty-four  of  title  one  shall  apply  to  and  be  observed 
by  corporations  organizing  imder  this  title. 

Sec.  100  (47,  as  amended  by  act  of  February  27,  1873).  The 
amoimt  of  capital  stock  in  any  such  corporation  shall  in  no  case  be 
less  than  ten  thousand  dollars  nor  more  than  five  hundred  thousand 
dollars,  and  shall  be  divided  into  shares  of  not  less  than  ten  dollars 
nor  more  than  fifty  dollars  each,  except  that  the  capital  stock  of 
mutual  building  and  loan  associations  may  be  divided  into  shares  of 
two  hundred  dollars  each,  but  the  capital  stock  and  number  of  shares 
may  be  increased  at  any  regular  meeting  of  the  stockholders;  pro- 
vided, the  capital  stock  when  so  increased  shall  not  exceed  five  hun- 
dred thousand  dollars. 

♦  ♦♦«♦*♦♦ 

Sec.  105  (52).  No  corporation  shall  be  formed  under  this  title  to 
continue  more  than  thirty  years. 


MINNEAPOLIS  t?.  STREET  RAILWAY  CO.        426 
215  U.  8.  Opinion  of  the  Court. 

railways  in  the  streets  and  highways  of  the  city  of  Minneapolis 
and  its  suburbs  in  the  county  of  Hennepin,  State  of  Minne- 
sota." It  states  the  time  of  the  commencement  of  the  corpo- 
ration to  be  the  first  of  July,  1873,  and  the  period  of  con- 
tinuance thereof  to  be  fifty  years  thereafter.  The  shares  of 
capital  stock  are  twenty-five  hundred  at  $100  each. 

Under  Title  II  the  corporate  life  is  limited  to  not  moPe 
than  thirty  years,  and  the  shares  of  capital  stock  are  to  be  not 
less  than  $10  or  more  than  $50  each. 

The  corporation  has  continued  to  act  since  the  expiration  of 
the  thirty  years  which  would  have  been  its  corporate  life  had  it 
been  organized  under  Title  II.  There  have  been  no  proceed- 
ings, so  far  as  the  record  shows,  to  inquire  into  its  corporate 
existence  since  the  expiration  of  the  thirty  years,  and  this 
record  discloses  that  a  number  of  ordinances  have  been  passed 
by  the  city  of  Minneapolis  since  July  1,  1903,  requiring  of  the 
corporation  the  construction  of  additional  lines  of  railway  upon 
certain  of  the  streets  of  the  city  of  Minneapolis,  and  to  other- 
wise discharge  its  duties  as  a  continuing  corporation. 

This  record  therefore  shows  that  the  company  undertook  to 
organize  under  Title  I,  for  the  period  of  fifty  years,  has  con- 
tinued to  act  as  such  corporation,  and  was  so  acting  at  the 
time  of  the  passage  of  the  ordinance  of  February  9,  1907. 

We  proceed  to  examine  the  question.  Did  the  ordinance  of 
July  9,  1875,  together  with  the  ratifying  act  of  1879,  make  a 
contract  between  the  city  of  Minneapolis  and  the  street  rail- 
way company,  which  would  endure  for  the  period  of  fifty 
years?   Section  I  of  the  ordinance  of  July  9, 1875,  provides : 

"Sec.  I.  That  the  Minneapolis  Street  Railway  Company 
be  and  is  hereby  granted,  during  the  term  of  its  charter,  the 
exclusive  right  and  privilege  of  constructing  and  operating  a 
single  or  double  track  for  a  passenger  railway  line,  with  all 
necessary  tracks  for  turnouts,  sidetracks  and  switches,  in  such 
streets  of  said  city  as  the  city  council  may  deem  suited  to  street 
railways,  subject  to  the  terms,  conditions  and  forfeitures  here- 
inafter contained;  provided,  that  the  city  council  reserves  the 


426  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  216  U.  S. 

right  to  limit  the  said  company  to  the  construction  of  a  single 
track  upon  such  street  or  streets  as  it  may  deem  proper. 

Section  VIII  of  the  same  ordinance  provides : 

"  Sec.  VIII.  The  said  company  may  regulate  and  establish 
from  time  to  time  such  rates  of  fare  for  the  transportation 
of  passengers  and  freight  over  its  lines  of  railway  as  it  may 
deem  proper;  provided,  that  the  charge  for  carrying  a  per- 
son, including  hand  baggage,  from  one  point  to  another 
within  the  city  limits,  whether  by  one  or  more  lines  operated 
by  the  same  company  shall  not  exceed  five  cents  on  any  one 
line;  provided,  further,  that  the  city  of  Minneapolis  hereby 
reserves  the  right  to  alter  and  regulate  the  rate  to  be  charged 
by  the  said  companies,  their  successors  and  assigns,  for  the 
transportation  of  passengers  and  freight  at  the  expiration  of 
five  years  from  the  approval  of  this  ordinance,  and  every  five 
years  thereafter,  fixing  the  same  at  such  rates  as  the  city 
council  of  said  city  may  deem  just  and  reasonable;  provided, 
that  the  city  shall  not  reduce  the  passenger's  fare  below  five 
cents,  over  any  one  continuous  line,  and  what  shall  be  con- 
sidered a  continuous  line  may  be  designated  by  the  city 
council  of  the  said  city,  but  that  said  council  shall  not  desig- 
nate any  such  continuous  line  to  be  more  than  three  miles  in 
length." 

Section  XVII  of  the  ordinance  provides : 

"Sec.  XVII.  Within  thirty  days  from  the  publication  of 
this  ordinance  said  company  shall  file  with  the  city  clerk  a 
written  acceptance  of  the  grants  hereinabove  made,  with  the 
conditions,  regulations  and  limitations  above  expressed,  signed 
by  the  president  and  secretary  of  said  company,  and  when  so 
accepted  this  ordinance  shall  operate  as  a  contract  between 
the  city  and  said  company,  and  upon  failure  to  file  such  ac- 
ceptance as  aforesaid,  then  the  above  grant  shall  not  become 
operative  to  vest  any  rights,  privileges  or  franchises  whatso- 
ever." 

It  also  appears  that  the  company  filed  its  acceptance  in 
writing  of  the  ordinance  on  August  18,  1875. 


MINNEAPOLIS  v.  STREET  RAILWAY  00.        427 
216  U.  S.  Opinion  of  the  Court. 

In  considering  the  tenns  of  this  ordinance  and  what  it 
undertook  to  accomplish  on  its  face,  we  are  to  bear  in  mind 
that  public  grants  of  this  character  are  not  to  be  extended 
by  implication,  and  that  all  that  is  granted  must  be  found  in 
the  plain  terms  of  the  act.  This  principle  has  been  so  fre- 
quently and  recently  announced  in  this  court  that  it  is  un- 
necessary to  cite  the  cases  which  have  established  it.  Recog- 
nizing this  principle,  it  must  also  be  remembered,  that  grants 
of  the  character  of  the  one  under  consideration  here,  when 
embodying  the  terms  of  a  contract,  are  protected  by  the 
Federal  Constitution  from  impairment  by  subsequent  state 
legislation,  and  notwithstanding  the  principle  of  strict  con- 
struction, whatever  is  plainly  granted  cannot  be  taken  from 
the  parties  entitled  thereto  by  such  legislative  enactments. 
Statutes  and  ordinances  of  this  character  are  not  to  be  ex- 
tended by  construction,  nor  should  they  be  deprived  of  their 
meaning,  if  it  is  plainly  and  clearly  expressed. 

Examining  this  ordinance  in  the  light  of  these  principles, 
there  is  no  ambiguity  in  section  VIII,  which  gives  to  the  city 
the  right  to  regulate  the  fares  to  be  charged,  provided  the 
same  are  not  reduced  below  five  cents  for  each  passenger 
over  any  one  continuous  line,  to  be  designated  by  the  city, 
of  not  more  than  three  miles  in  length.  By  §  I  of  the  same 
ordinance  the  right  and  privilege  of  constructing  and  operat- 
ing a  railway  line  subject  to  the  terms,  conditions  and  for- 
feitures named  in  the  ordinance  is  granted  to  the  street  railway 
company  "during  the  term  of  its  charter." 

What  did  this  mean?  The  company  had  undertaken  to 
organize,  and  filed  its  certificate  of  incorporation — which  is 
its  charter  under  the  laws  of  Minnesota — and  had  therein 
stated  its  term  of  existence  to  be  for  fifty  years  from  the  first 
day  of  July,  1873.  There  was  a  positive  requirement  of  the 
law  that  this  period  of  duration  should  be  stated  in  the 
certificate  filed  for  the  purpose  of  procuring  incorporation, 
and  it  was  there  found,  and  was  duly  filed,  recorded  and  pub- 
lished as  required  by  law. 


428  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

It  is  unreasonable  to  suppose  that  the  city  and  the  com- 
pany at  that  time  entered  into  any  inquiry  or  controversy 
as  to  whether  the  company  could  lawfully  incorporate  for 
more  than  thirty  years.  The  charter  referred  to  in  the  ordi- 
nance could  not  have  been  anything  else  than  the  certificate 
of  incorporation  required  by  law.  Of  this  the  city  was  bound 
to  take  notice,  and  when  it  granted  the  privileges  '^  during  the 
term  of  the  charter/'  it  could  have  meant  nothing  less  than 
during  the  period  named  in  the  charter.  As  was  declared 
by  the  Supreme  Court  of  Minnesota  in  Ciiy  of  Diduth  v. 
DuLutk  Gas  and  Water  Company,  45  Minnesota,  210,  214,  a 
case  involving  the  extent  of  rights  conferred  upon  a  water 
company  by  a  city  ordinance,  "The  council  must  be  held, 
when  dealing  with  defendant,  to  know  its  character,  its  pur- 
poses, and  powers,  as  disclosed  by  its  articles  of  incorpora- 
tion." 

We  come  now  to  the  terms  of  the  ratifying  act  of  March  4, 
1879.  Laws  of  Minn.,  1879,  p.  410,  c.  299.  This  act  is  as 
follows : 

"An  act  to  confirm  the  grant  of  the  city  of  Minneapolis  to 
the  Minneapolis  Street  Railway  Company. 

"  Be  it  enacted  by  the  Legislature  of  the  State  of  Minnesota : 

"Sec.  I.  That  whereas,  the  city  of  Minneapolis  did,  by 
an  ordinance  entitled  'An  ordinance  authorizing  and  regulat- 
ing street  railways  in  the  city  of  Minneapolis,'  passed  by  the 
city  council  of  said  city  on  the  ninth  (9th)  day  of  July,  one 
thousand  eight  hundred  and  seventy-five  (1875),  and  ap- 
proved by  the  mayor  of  said  city  on  the  seventeenth  (17th) 
day  of  July,  one  thousand  eight  hundred  and  seventy-five 
(1875),  and  by  an  ordinance  passed  July  third  (3d),  one 
thousand  eight  hundred  and  seventy-eight  (1878),  and 
amended  July  eighth  (8th),  one  thousand  eight  hundred  and 
seventy-eight  (1878),  and  approved  July  tenth  (10th),  one 
thousand  eight  hundred  and  seventy-eight  (1878),  grant  to 
the  Minneapolis  Street  Railway  Company  the  right  to  con- 
struct and  maintain  a  street  railway  through  the  streets  of 


MINNEAPOLIS  v.  STREET  RAILWAY  CO.       429 
215  U.  S.  Opinion  of  the  Court. 

said  city,  with  certain  rights  and  privileges  in  said  ordinance 
particularly  set  forth.  Now  the  said  right  to  construct  and 
maintain  said  street  railway  through  the  streets  of  said  city, 
with  the  rights  and  privileges  as  set  forth  and  qualified  in 
said  ordinance,  is  hereby  legalized  and  granted  to  said  com- 
pany. 

''Sec.  2.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage." 

The  ordinances  of  July,  1878,  referred  to  in  the  ratifying  act, 
concerned  certain  streets  in  the  city  of  Minneapolis,  and  are 
not  important  to  be  considered  in  this  connection. 

It  has  not  been  suggested  in  the  elaborate  briefs  presented 
by  the  learned  counsel  for  the  city,  that  the  state  legislature 
at  that  time  had  not  the  constitutional  right  to  pass  this 
ratifying  act. 

In  Green  v.  Knife  FdUs  Boom  Corj)oratwn,  35  Minnesota, 
155,  the  Supreme  Court  of  Minnesota  sustained  a  special  law 
conferring  new,  and  independent  franchises,  and  enlarged 
powers  upon  the  boom  company,  a  corporation  organized 
under  Title  II,  and,  originally  not  having  the  power  of  emi- 
nent domain,  nor  to  take  tolls,  nor  to  obstruct  the  navigable 
portions  of  the  St.  Louis  River. 

By  the  special  act  the  corporation  was  given  power  over 
the  navigation  and  use  of  the  river  as  respects  the  passage  of 
logs,  the  power  to  exercise  the  right  of  eminent  domain  was 
conferred  upon  it,  the  right  to  charge  toll  upon  all  logs  passed 
through  their  works,  and  to  receive  and  take  entire  charge 
and  control  of  timber  which  might  run  or  be  driven  through 
the  same,  and  to  boom,  scale  and  deliver  such  timber,  as 
provided  in  the  act,  with  a  lien  upon  all  such  logs,  which 
might  be  enforced  by  sale. 

It  was  held  that,  by  a  long  course  of  legislation  and  practical 
construction,  such  legislation  was  justified  and  ought  not  to 
be  disturbed.  The  constitutional  amendment  of  1881,  it  was 
said,  made  such  legislation  impossible  thereafter,  because  the 
legislature  is  therein  prohibited  from  enacting  any  special. 


430  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

or  private  laws,  in  the  following  cases:  "...  For  grant- 
ing corporate  powers,  or  privileges,  except  to  cities."  In  this 
case  the  court  referred  to  Ames  v.  Lake  Superior  &  Miss. 
R.  R.  Co,,  21  Minnesota,  241,  in  which  it  seems  to  be  held 
that  under  the  former  constitution,  prohibiting  the  formation 
of  corporations,  except  for  municipal  purposes,  under  special 
acts,  such  special  acts  stopping  short  of  creating  new  cor- 
porations, might  be  passed  by  the  legislature.  See  opinion 
upon  rehearing,  pages  284,  285. 

Looking  to  the  terms  of  the  act  of  March  4,  1879,  we  find 
that  the  right  to  construct  and  maintain  the  street  railway 
upon  the  streets  of  the  city,  with  the  rights  and  privileges  as 
set  forth  and  qualified  in  the  ordinance,  is  "legalized  and 
granted  to  said  company."  Language  could  scarcely  be 
plainer,  and,  if  we  are  correct  in  construing  the  ordinance, 
as  granting  the  right  and  privilege  of  maintaining  railways 
in  the  streets  of  Minneapolis,  for  the  charter  term  of  fifty 
years,  upon  the  terms  therein  mentioned,  a  vital  part  of 
which  concerns  the  right  of  the  company  to  charge  a  certain 
fare  for  passengers  carried,  it  follows  that  this  privilege,  with 
the  others,  was  vested  in  the  company  by  the  legislature  of 
the  State  of  Minnesota. 

We  may  note  in  this  connection  that  the  mere  fact  that  a 
contract  may  extend  beyond  the  term  of  the  life  of  a  corpora- 
tion does  not  destroy  it.  This  principle  was  recognized  by 
this  court  in  Detroit  v.  Detroit  Citizens^  Street  Railway  Co,, 
184  U.  S.  368,  in  which  it  was  held  that  a  city  ordiiiance 
granting  the  use  of  the  streets  of  the  city  for  a  term  which 
would  extend  the  grant  for  sixteen  years  beyond  the  life  of 
the  corporation  did  not  invalidate  it.  It  was  held  that  the 
limitation  upon  the  corporate  life  of  the  company  did  not 
prevent  it  from  taking  franchises,  or  other  property,  the  title 
to  which  would  not  expire  with  the  corporation  itself;  and 
further,  that  at  the  end  of  its  corporate  life,  if  such  property 
were  still  in  existence,  it  would  be  an  asset  divisible  among 
the  shareholders  after  the  payment  of  debts,  or  it  might,  if 


MINNEAPOLIS  v.  STREET  RAILWAY  CO.        431 
215  U.  8.  Opinion  of  the  Court. 

assignable,  be  transferred  to  any  other  person,  or  company, 
competent  to  hold  it. 

The  ratifying  act,  being  within  the  power  of  the  legislature, 
vested  this  contract  right  in  the  company,  notwithstanding 
the  want  of  power  in  the  city  to  make  it  at  the  time  it  was 
entered  into.    Nash  v.  Lowry,  37  Minnesota,  261. 

The  principle  is  well  stated  by  Morawetz  in  his  work  on 
Corporations,  vol.  1,  §  319,  2d  ed. : 

"Where  the  legislature,  by  statute,  recognizes  and  ac- 
quiesces in  the  existence  of  a  corporation  which  was  formed 
by  the  corporators  without  the  proper  authority,  it  thereby 
invests  the  association  with  the  right  of  continuing  to  act  in  a 
corporate  capacity  for  the  purposes  and  in  the  manner  that 
it  publicly  assumed  to  act.  And  if  rights  or  franchises  are 
conferred  upon  an  association  claiming  to  be  incorporated,  it 
thereby  becomes  authorized  to  exercise  the  powers  expressly 
conferred,  and  such  others  as  the  legislatiu*e  appears  to  have 
imputed  to  it." 

See  as  to  e£fect  of  validating  acts,  Los  Angeles  v.  Los  Angeles 
City  Water  Co.,  177  U.  S.  558;  BMr  v.  Chicago,  201  U.  S. 
400,  454. 

But,  it  is  contended,  if  a  contract  is  found  to  exist,  its 
rights  were  lost  by  virtue  of  the  ordinance  of  September  19, 
1890,  authorizing  the  street  railway  company  to  change  its 
mode  of  operation  from  the  use  of  horse  power  to  electricity. 
It  is  insisted  that  by  the  acceptance  of  the  electrical  power 
ordinance  the  company  abandoned  any  rights  it  had  under  the 
ordinance  of  1875  and  the  ratif3dng  act  of  1879;  and,  further- 
more, that  by  the  express  terms  of  the  ordinance  of  Septem- 
ber 19,  1890,  the  right  to  control  the  futiu^e  rates  of  fare  was 
thereby  vested  in  the  city  to  an  extent  imlimited,  except  by 
constitutional  inhibitions  against  confiscatory  legislation. 

As  to  the  termination  of  the  rights  of  the  company  by  rear- 
son  of  the  substitution  of  electricity  for  horse  power,  is  there 
such  abandonment  of  the  rights  originally  secured  that  they 
no  longer  exist?    It  19  contended  that  the  original  ordinance 


432  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

was  limited  to  the  right  to  operate  street  railwajrs  by  horse 
or  pneumatic  power,  and  that  when  the  ordinance  of  Septem- 
ber 20,  1890,  was  passed  conditions  were  entirely  changed, 
and  a  new  and  different  mode  of  operation  was  substituted, 
and  rights  existing  under  the  original  ordinance  were  termi- 
nated and  abandoned. 

Let  us  see  if  the  ordinance  of  1875  was  limited  to  the  use 
of  animal  or  pneumatic  power.  Section  IV  of  that  ordinance 
provides : 

"Sec.  IV.  The  cars  to  be  used  upon  such  tracks  shall  be 
propelled  with  either  animal  or  pnemnatic  power,  as  the  scud 
company  deem  advisable,  provided  that  no  propelling  power 
or  machinery  of  any  sort  shall  be  used  after  it  shall  prove  to 
be  a  public  nuisance,  and  said  company  may  connect  with 
any  other  railway  upon  which  power  is  used  similar  to  that 
authorized  to  be  used  on  street  railways  by  the  city  council; 
but  no  locomotive,  freight  or  passenger  car,  such  as  are 
usually  run  over  the  general  railways  of  this  State  for  the 
transportation  of  freight  and  passengers,  shall  be  used  upon 
any  of  said  tracks,  unless  authorized  by  the  city  council; 
provided,  that  the  said  Minneapolis  Street  Railway  Company, 
and  any  other  street  railway  company  which  the  council  may 
charter  under  section  3  of  this  ordinance,  shall  each  allow 
the  other  to  connect  with  and  jointly  use  such  portions  of 
the  track  belonging  to  each  as  the  convenience  of  the  traveling 
public  may  require,  upon  such  equitable  terms  as  may  be 
agreed  upon  by  the  said  companies,  or  as  may  be  determined 
by  the  District  Court  of  Hennepin  County." 

There  can  be  no  doubt  that,  in  the  then  state  of  the  art, 
the  use  of  electric  power  as  the  means  of  operating  the  cars 
of  the  company  was  not  specifically  in  contemplation.  While 
pneumatic  power  is  also  suggested,  there  does  not  seem  to  be 
any  means  of  operation  by  that  method.  That  the  use  of 
other  motive  power  might  be  developed  in  the  progress  of 
street  railway  operation,  we  think,  was  clearly  indicated  in 
the  ordinance  itself.    For  while  animal  or  pneumatic  power  is 


MINNEAPOLIS  v,  STREET  RAILWAY  CO.       433 
216  U.  8.  Opinion  of  the  Court. 

named,  it  is  provided  that  no  propelling  power  shall  be  used 
after  it  shall  be  proved  a  public  nuisance,  and  that  the  com- 
pany might  connect  with  other  street  railroads  upon  which 
power  is  used  similar  to  that  authorized  to  be  used  by  street 
railwajrs  by  the  city  council,  but  steam  power  cars,  such  as 
are  in  conmion  use,  should  not  be  used  upon  the  city  tracks, 
unless  so  authorized  by  the  city  council. 

In  these  terms  of  the  ordinance  it  is  evident  that  the 
parties  had  in  mind  that  other  propelling  power  might  be 
developed,  and  it  was  the  purpose  of  the  city  council  to  keep 
control  of  its  use  so  as  to  prevent  it  from  becoming  a  public 
nuisance  in  the  streets.  There  was  no  positive  limitation  to 
animal  power  and  the  possible  progress  and  improvement  in 
the  means  of  propelling  cars,  contemplated  by  the  parties, 
was  carried  into  effect  when  the  city  passed,  and  the  -com- 
pany accepted,  the  ordinance  of  September  19,  1890.  By 
that  ordinance  the  railway  company  was  authorized  to  oper- 
ate all  its  existing  Unes,  and  all  its  lines  to  be  thereafter  con- 
structed in  the  city,  by  electricity  as  the  motive  power. 

Section  VIII  of  that  ordinance  provides : 

"Sec.  VIII.  In  the  construction,  maintenance  and  opera- 
tion of  said  lines  of  street  railway,  said  Minneapolis  Street 
Railway  Company,  its  successors  and  assigns,  shall  at  all 
times  be  subject  to  all  the  conditions  and  limitations  and 
other  provisions  of  an  ordinance  entitled  '  An  ordinance  au- 
thorizing and  regulating  street  railways  in  the  city  of  Minne- 
apolis,' passed  July  9,  1875,  and  approved  July  17,  1875,  as 
the  same  has  been  amended  and  is  now  in  force,  and  all  other 
ordinances  of  said  city  now  in  force  or  hereafter  adopted,  so 
far  as  applicable." 

It  is  the  contention  of  the  city  that  by  the  terms  of  this 
ordinance  the  street  railway  company  became  subject  to 
regulation  by  the  ordinances  of  the  city  then  in  force,  or 
thereafter  adopted,  including  the  right  to  regulate  and  con- 
trol the  amount  to  be  charged  for  fares  for  the  transportation 
of  passengers. 

VOL.  ccxv — 28 


434  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

In  coDstruing  this  section  we  must  bear  in  mind  that  the 
company  then  had,  as  we  have  heretofore  said,  a  contract 
upon  the  subject  of  fares,  which  limited  the  city  in  its  right 
to  regulate  the  same  to  a  reduction  not  below  five  cents  per 
passenger  upon  any  one,  continuous  line.  It  needs  no  argu- 
ment to  demonstrate  that  the  right  to  charge  passenger  fares 
is  of  the  very  essence  of  the  contract,  essential  to  the  operation 
and  success  of  the  enterprise.  Detroit  v.  Detroit  Citizens' 
Street  Railway  Co,,  184  U.  S.  368,  384. 

In  section  VI  of  the  ordinance  of  September  19,  1890,  it  is 
provided : 

"Sec.  VI.  Passenger  cars  on  all  said  lines  shall  run  between 
extreme  limits  on  all  extensions  to  or  near  the  intersection 
of  Washington  avenue  with  Hennepin  avenue,  without  change 
to  passengers  traveling  thereon,  and  after  November  1,  1890, 
said  street  railway  company  shall  issue  transfer  checks  at 
the  junction  of  said  lines  at  Washington  and  Hennepin 
avenues,  to  any  passenger  on  any  of  said  lines,  who  shall  pay 
one  full  fare,  which  transfer  check  shall  entitle  passenger  so 
receiving  the  same  to  a  continuous  passage  on  either  of  said 
connecting  lines;  provided,  that  no  passenger  shall  be  en- 
titled to  more  than  one  transfer  check  for  one  fare;  and  pro- 
vided further,  that  said  transfer  check  shall  be  used  only  by 
the  person  receiving  the  same  for  a  continuous  passage,  and 
shall  be  used  on  the  next  car  departing  on  the  connecting  line 
upon  which  it  is  to  be  used.  And,  if  any  of  the  lines  of  said 
railway  do  not  connect  at  said  Washington  and  Hennepin 
avenues,  transfer  checks  shall  be  given  at  the  point  nearest 
to  the  crossing  of  Washington  and  Hennepin  avenues,  where 
such  lines  do  connect  with  a  line  reaching  said  junction  point 
at  Washington  and  Hennepin  avenues." 

This  is  the  only  section  which  mentions  the  subject  of  fares, 
and  it  is  therein  provided  that  transfer  checks  may  be  issued 
at  certain  points  to  persons  paying  "one  full  fare,"  the  trans- 
fer check  to  be  used  only  by  the  person  receiving  the  same, 
for  one  continuous  passage. 


MINNEAPOLIS  v,  STREET  RAILWAY  CO.        436 
215  U.  S.  Opinion  of  the  Court. 

The  rate  of  fare  had  been  fixed  in  the  ordinance  of  July  9, 
1875;  and  if  it  was  intended  to  change  it  it  would  seem  clear 
that  the  parties  would  have  entered  into  new  negotiations 
concerning  it,  and  would  have  adopted,  if  that  was  desirable, 
some  definite  measure  concerning  it.  The  ordinance  of  July  9, 
1875,  was  not  attempted  to  be  repealed,  and  is  referred  to 
in  section  VIII  of  the  ordinance  of  September  19,  1890,  "as 
the  same  as  has  been  amended,  and  as  now  in  force,''  and 
adopted,  "so  far  as  applicable,"  concerning  the  things  men- 
tioned in  section  VIII. 

It  is  true  that  by  the  ordinance  of  July  9,  1875,  there  was 
no  right  to  reduce  the  passenger  fare  below  five  cents  over 
any  one  continuous  line  not  more  than  three  miles  in  length, 
to  be  designated  by  the  city  council.  By  the  terms  of  the 
ordinance  of  September  19, 1890,  transfers  were  to  be  allowed, 
so  that,  for  one  full  fare,  a  passenger  might  receive  a  contin- 
uous trip  very  considerably  exceeding  three  miles  in  length 
— ^it  is  stated  in  one  of  the  briefs  to  include  a  trip  of  eleven 
miles.  But  we  do  not  understand  that  the  acceptance  of  this 
regulation  had  the  effect  to  abrogate  the  contract  as  to  the 
right  to  charge  a  fare  of  five  cents  over  one  continuous  line, 
that  is,  for  one  continuous  passage.  Acquiescence  in  a  regu- 
lation which  may  not  have  been  deemed  injurious,  and  may 
have  been  deemed  wise  and  expedient,  does  not  preclude  a 
contest  against  the  enforcement  of  regulations  which  are 
injurious  and  violative  of  contract  rights.  Los  Angeles  v. 
Los  Angeles  City  Water  Co,,  177  U.  S.  558,  579. 

The  right  to  future  control  under  section  VIII  was  to  include 
the  "construction,  maintenance,  and  operation"  of  the  lines 
of  the  street  railway  company.  Did  this  undertaking  have  the 
effect  to  abrogate  the  contract  right  already  existing,  and  to 
subject  the  company  for  the  future  as  to  the  right  to  charge 
fares,  to  the  discretion  of  the  city  council?  Or,  do  the  terms 
"construction,  maintenance,  and  operation"  have  reference 
to  the  manner  of  carrying  on  the  business  of  the  road,  the 
laying  of  its  tracks,  the  use  of  the  streets,  the  keeping  up  of 


436  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

the  equipment;  the  safety  of  the  passengers  and  the  public, 
and  similar  matters  not  involving  the  right  to  charge  fares? 
We  think  these  terms  refer  to  the  latter  class  of  rights  and 
privileges.  Such  is  the  import  of  the  words  used,  and  the 
subject  of  rates  of  fare  is  not  mentioned.  The  ease  already 
referred  to,  Detroit  v.  Detroit  Citizens'  Rwy.  Co.,  184  U.  S. 
368,  is  an  instructive  one  upon  this  point.  In  that  case  it 
was  held  that  a  street  railway  company  having  a  vaUd  con- 
tract, giving  it  the  right  to  charge  five  cents  for  the  trans- 
portation of  each  passenger,  did  not  lose  that  right  by  ac- 
cepting the  terms  of  an  ordinance  reserving  the  right  to 
make  such  further  rules,  orders  and  regulations  as  to  the  city- 
council  may  seem  proper.    Wilson  v.  Standefer,  184  U.  S.  399. 

We  therefore  reach  the  conclusion  that  when  the  ordinance 
complained  of,  that  of  February  9,  1907,  was  enacted  by  the 
city  council,  the  company  was  the  owner  of  a  valuable  con- 
tract right  secured  to  it  by  the  ordinance  of  July,  1875,  rati- 
fied by  the  enactment  of  the  legislature  of  the  State  of  Minne- 
sota on  March  4,  1879,  which  secured  to  the  company  for  fifty 
years  from  July  1, 1873,  the  contract  right  to  charge  five  cents 
per  passenger  for  one  continuous  trip.  We  think  that  the 
requirement  of  the  ordinance,  that  the  company  should  op- 
erate its  roads  by  the  sale  of  tickets  six  for  a  quarter,  as  re- 
quired by  the  ordinance  of  February  9,  1907,  was  an  enact- 
ment by  legislative  authority  which  impaired  the  obligation 
of  the  contract  thus  held  and  owned  by  the  complainant 
company.  We  therefore  reach  the  conclusion  that  the  de- 
cree of  the  CSrcuit  Court  enjoining  the  execution  of  the  or- 
dinance, for  the  reasons  stated,  should  be  afiirmed. 

An  examination  of  the  decree,  however,  shows  that  it  goes 
beyond  the  necessities  of  the  case  in  specifically  decreeing 
that  the  complainant  company  is  a  corporation  organized 
under  Title  I  of  chapter  34  of  the  Statutes  of  Minnesota  for 
the  year  1866,  with  charter  rights  as  alleged  in  the  amended 
bill.  It  also  decrees  that  the  contract  under  the  ordinances 
of  July  9,  1875,  and  July  18,  1878,  as  ratified  by  the  act  of 


MECHANICAL  APPLIANCE  GO.  v.  CASTLEMAN.  437 
215  U.  S.  Syllabus. 

March  4, 1879,  constituted  a  contract  for  and  during  the  term 
of  complainant's  charter,  as  alleged  in  the  amended  bill.  In 
the  amended  bill  it  is  alleged  that  the  charter  rights  of  the 
company  were  extended  to  March  1, 1937;  this  is  undoubtedly 
averred  because  of  the  amendment  to  the  charter  which  ap- 
pears in  the  record,  extending  the  term  of  the  company's 
corporate  life  until  that  time.  The  decree  as  it  stands  might 
be  construed  as  establishing  a  contract  to  endure  until  March, 
1937. 

All  that  was  necessary  to  adjudge  was  that  the  company, 
by  virtue  of  the  ordinance  of  July  9,  1875,  as  amended  in 
July,  1878,  as  ratified  and  confirmed  by  the  act  of  the  legis- 
lature of  the  State  of  Minnesota  of  March  4,  1879,  consti- 
tuted a  valid  contract  for  the  term  of  fifty  years  from  July  1, 
1873,  which  is  still  so  far  in  force  as  to  prevent  the  city  coun- 
cil from  reducing  the  rate  of  fare  below  the  simi  of  five  cents 
for  each  passenger  for  one  continuous  passage,  and  enjoining 
the  city  from  publishing  and  enforcing  the  ordinance  of 
February  9,  1907,  because  the  same  impaired  the  obligation 
of  the  subsisting  contract  aforesaid. 

The  decree  of  the  Circuit  Court  should  be  modified  so  as  to 

meet  these  requirements,  and,  so  modified. 

Affirmed. 


•*0^ 


MECHANICAL  APPLIANCE  COMPANY  v.  CASTLEMAN. 

ERROR  TO  THE  CIRCUIT  COURT  OP  THE  UNITED  STATES  FOR  THE 

EASTERN  DISTRICT  OF  MISSOURI. 

No.  48.    Argued  December  3,  1909.— Decided  January  3, 1910. 

Whether  defendant  was  subject  to  service  of  process  at  the  place  where 
served  is  one  of  the  jurisdictional  questions  which  may  be  brought 
directly  to  this  court  under  }  5  of  the  Court  of  Appeals  Act  as 
amended  January  20,  1897,  c.  68,  29  Stat.  492.  Remington  v.  Cen- 
tral Pacific  Raiiroad  Co.,  198  U.  S.  95. 


438  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

After  removal  from  the  state  to  the  Federal  courti  the  moving  party 
hajs  a  right  to  the  opinion  of  the  Federal  court  not  only  on  the 
merits,  but  also  as  to  the  validity  of  the  service  of  process. 

In  Federal  jurisdiction  a  foreign  corporation  can  be  served  with  proc- 
ess imder  a  state  statute  only  when  it  is  doing  business  therein,  and 
such  service  must  be  upon  an  agent  representing  the  corporation 
in  its  business.    Goldey  v.  Morning  News  Co.,  156  U.  S.  518. 

Notwithstanding  the  conformity  act,  §914,  Rev.  Stat.,  decisions 
and  statutes  of  States  are  not  conclusive  upon  the  Federal  courts 
in  determining  questions  of  jurisdiction. 

Even  if  by  the  law  of  the  State  the  sheriff's  return  is  conclusive  and 
cannot  be  attacked,  after  removal  into  the  Federal  court,  that  court 
can  determine  whether  a  defendant  was  properly  served;  and  if, 
as  in  this  case,  it  appears  that  the  corporation  was  not  doing  business 
in  the  State,  the  court  should  dismiss  the  bill  for  want  of  juris- 
diction by  proper  service. 

In  such  case,  and  on  such  a  question,  it  is  proper  for  the  ooiui;  to 
consider  affidavits,  it  not  appearing  in  the  recoid  that  any  objec- 
tion was  taken  thereto. 

The  facts,  which  involve  the  jurisdiction  of  the  Circuit 
Court,  are  stated  in  the  opinion. 

Mr,  Lee  W.  Grant,  with  whom  Mr.  P.  B.  Kennedy  was  on 
the  brief,  for  plaintiff  in  error. 

Mr.  Benjamin  T.  Castleman,  defendant  in  error,  pro  se. 
Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

This  case  comes  here  under  §  5  of  the  Court  of  Appeals  Act, 
as  amended  January  20, 1897,  29  Stat.  492,  c.  68,  upon  a  cer- 
tificate from  the  Circuit  Court  of  the  United  States  for  the 
Eastern  District  of  Missouri,  presenting  a  question  of  the  ju- 
risdiction of  that  court  to  entertain  a  suit  brought  by  Benja- 
min T.  Castleman,  defendant  in  error,  against  the  Mechanieal 
Appliance  Company,  plaintiff  in  error,  to  recover  for  the  breach 
of  a  certain  alleged  contract  concerning  the  making  and  de- 
livery of  massage  motors. 

The  action  was  originally  brought  in  the  Circuit  Court  of 
the  city  of  St.  Louis,  in  the  State  of  Missouri,  and  the  Mechan- 


MECHANICAL  APPLIANCE  CO.  v,  CASTLEMAN.  439 
215  U.  S.  Opinion  of  the  Court. 

ical  Appliance  Company,  a  foreign  corporation,  then  defend- 
ant, removed  the  case  to  the  Circuit  Court  of  the  United  States 
for  the  Eastern  District  of  Missouri  upon  the  ground  of  di- 
verse citizenship.  After  the  case  reached  the  United  States 
Circuit  Court  the  bill  of  exceptions  shows  that  a  motion  to 
quash  the  summons  and  certain  affidavits  were  withdrawn, 
and  a  plea  to  the  jurisdiction  was  filed. 

The  original  service  of  summons  in  the  state  court  had  been 
made  by  the  sheriff,  who  returned  the  summons  as  follows : 

''Served  this  writ  at  the  city  of  St.  Louis,  Missouri,  on  the 
within  named  defendant  the  Mechanical  Appliance  Company 
(a  corporation)  this  29th  day  of  December,  1906,  by  deliver- 
ing a  copy  of  the  writ  and  petition  furnished  by  the  clerk  to 
Dudley  Shaw,  agent  of  the  said  defendant  corporation,  he 
being  in  said  defendant's  usual  business  office  and  in  charge 
thereof.  The  president  or  other  chief  officer  of  said  defend- 
ant could  not  be  found  in  the  city  of  St.  Louis  at  the  time  of 
service." 

In  the  plea  to  the  jurisdiction,  in  the  Circuit  Court  of  the 
United  States,  the  plaintiff  in  error  set  up : 

"1.  That  it  is  a  corporation,  organized  under  the  laws  of 
the  State  of  Wisconsin,  that  it  has  never  taken  out  a  license 
to  do  business  in  the  State  of  Missouri,  and  that  at  the  time 
of  the  alleged  service  of  the  writ  of  summons  herein  as  set 
out  in  the  return  of  the  sheriff,  to  wit,  29th  day  of  December, 
1906,  the  defendant  did  not  have  any  agent,  office  or  place 
of  business  in  the  city  of  St.  Louis  or  in  the  State  of  Missouri. 

"2.  That  the  person  upon  whom  service  was  attempted  to 
be  had  by  the  sheriff,  and  to  whom  a  copy  of  the  summons 
and  petition  was  delivered,  to  wit,  Dudley  Shaw,  was  not  and 
had  not  been  for  some  time  prior  thereto  an  officer,  agent  or 
employ^  of  this  defendant.  That  said  Dudley  Shaw  was  not, 
at  the  time  of  the  delivery  of  the  summons  herein  to  him  by 
the  sheriff,  in  charge  of  defendant's  usual  business  office,  or 
in  defendant's  usual  business  office  in  the  city  of  St.  Louis, 
for  the  reason  that  this  defendant  had,  at  said  time,  no  busi- 


440  OCTOBER  TERM,  1909. 

Opbiion  of  the  Court.  215  U.  8. 

ness  office  nor  any  other  office  in  the  dty  of  St.  LouiSy  State 
of  Missouri." 

Certain  affidavits  are  set  out  in  the  IhII  of  exceptions,  and 
it  is  therein  stated  that  they  were  filed.  Two  affidavits  ap- 
pear to  have  been  filed  in  support  of  the  plea  to  the  jurisdic- 
tion, and  one,  by  the  plaintiff,  in  opposition  thereto.  In  the 
certificate  the  learned  Circuit  Judge  states: 

"  I  hereby  certify  that  in  this  cause  the  following  question 
of  jurisdiction  arose:  the  defendant  filed  a  plea  to  the  juris- 
diction of  the  court  on  the  ground  that  it  was  a  corporation 
organized  under  the  laws  of  the  State  of  Wisconsin,  that  it 
has  no  office,  place  of  business,  or  agent  in,  and  was  not  doing 
business  in  the  State  of  Missouri  at  the  time  of  the  service  of 
summons  herein  and  that  the  person  served  with  the  process 
herein  was  not  the  agent  of  the  defendant  at  the  time  of  said 
service.  Defendant  filed  affidavit  in  support  of  the  plea. 
I  overruled  the  plea  on  the  ground  that  the  facts  stated  in  the 
return  of  the  sheriff  to  the  summons  were  conclusive  on  the 
defendant  and  could  not  be  controverted  by  it.  When  the 
cause  was  called  for  trial  the  same  objection  was  made  by 
the  defendant  and  overruled  for  the  same  reason.  The  ques- 
tion only  of  jurisdiction  of  the  court  is,  therefore,  hereby  cer- 
tified to  the  Supreme  Coiut  of  the  United  States  for  its  de- 
cision thereon." 

It  is  settled  that  a  question  of  this  character  involves  the 
jurisdiction  of  the  Circuit  Court  as  a  Federal  court  and  may 
be  brought  here  by  writ  of  error  under  §  5  of  the  Court  of 
Appeals  Act  of  1891  as  amended  in  1897.  Remington  v.  Cenr 
tral  Pacific  Railroad  Company^  198  U.  S.  95. 

It  is  contended  by  the  defendant  in  error  that  the  plea  to 
the  jurisdiction  did  not  definitely  state  that  the  corporation 
defendant  was  not  doing  business  in  the  State  of  Missouri 
at  the  time  of  the  attempted  service;  and,  furthermore,  that 
the  affidavits  were  not  shown  to  have  been  offered  in  evidence, 
although  the  bill  of  exceptions  states  that  the  same  were  filed. 
The  certificate  of  the  judge,  which  is  required  by  statute  in 


MECHANICAL  APPLIANCE  CO.  v.  CASTLEMAN.    441 
216  U.  8.  Opinion  of  the  Court. 

order  to  bring  the  case  to  this  court;  states  that  the  defend- 
ant raised,  by  plea  to  the  jurisdiction,  the  grounds  of  objec- 
tion that  it  was  a  foreign  corporation,  having  no  office,  place 
of  business  or  agent  in  and  was  not  doing  business  in  the  State 
of  Missouri  at  the  time  of  the  service  of  summons,  and  that 
the  person  served  with  the  process  was  not  the  agent  of  the 
defendant  at  the  time  of  said  service. 

The  certificate  shows  that  the  court  did  not  consider  the 
affidavits,  and  overruled  the  plea  on  the  sole  ground  that  the 
facts  stated  in  the  return  of  the  sheriff  tq  the  summons  were 
conclusive,  and  could  not  be  controverted  by  the  defendant. 
It  is  also  stated  in  the  certificate  that  when  the  case  was  called 
for  trial  the  same  objection  was  made  and  overruled  for  the 
same  reason.  In  the  light  of  this  certificate  and  the  statements 
of  the  bill  of  exceptions  we  think  it  must  be  regarded  that  the 
question  was  fairly  before  the  court,  notwithstanding  the 
somewhat  meagre  allegations  of  the  plea  in  this  respect,  and 
presented  the  question,  which  it  is  certified  was  decided,  upon 
plea  and  objections  attacking  the  jurisdiction  of  the  court, 
because  the  corporation  was  not  doing  business  in  the  State  of 
Missouri,  and  the  person  attempted  to  be  served  was  not  its 
agent  at  that  time. 

In  a  memorandum  opinion  it  is  indicated  that  the  learned 
judge,  in  the  court  below,  followed  a  previous  ruling  in  the 
same  court;  and  it  is  stated  that  it  is  the  law  of  Missouri,  as 
held  by  its  highest  court,  that  in  a  case  of  this  kind  a  return  of 
this  character  is  conclusive  upon  the  parties.  But  it  is  well 
settled  that,  after  removal  from  the  state  to  the  Federal  court, 
the  moving  party  has  a  right  to  the  opinion  of  the  Federal 
court,  not  only  upon  the  question  of  the  merits  of  the  case, 
but  as  to  the  validity  of  the  service  of  process.  Wabash  West- 
ern Ry.  Co.  V.  Brow,  164  U.  S.  271,  278. 

It  is  equally  well  settled  in  the  Federal  jurisdiction  that  a 
foreign  corporation  can  be  served  with  process  within  the 
State  only  when  it  is  doing  business  therein,  and  that  such 
service  must  be  upon  an  agent  who  represents  the  corporation 


442  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

in  its  business.  This  subject  underwent  extensive  considera- 
tion in  the  case  of  Goldey  v.  The  Morning  News,  156  U.  S.  518, 
and  the  rule  is  there  stated  by  Mr.  Justice  Gray,  speaking  for 
the  coiut,  as  follows  (p.  522) : 

"...  service  of  mesne  process  from  a  court  of  a  State, 
not  made  upon  the  defendant  or  his  authorized  agent  within 
the  State,  although  there  made  in  some  other  manner  recog- 
nized as  valid  by  its  legislative  acts  and  judicial  decisions,  can 
be  allowed  no  validity  in  the  Circuit  Court  of  the  United  States 
after  the  removal  of  .the  case  into  that  coiut,  pursuant  to  the 
acts  of  Congress,  unless  the  defendant  can  be  held,  by  virtue 
of  a  general  appearance  or  otherwise,  to  have  waived  the  de- 
fect in  the  service,  and  to  have  submitted  himself  to  the  juria- 
diction  of  the  court." 

In  view  of  the  principles  thus  determined,  we  think  the  re- 
turn of  the  sheriff  in  the  state  court  was  not  conclusive  upon 
the  question  of  service.  For  when  the  question  was  raised  in 
the  Circuit  Court  of  the  United  States  the  jurisdiction  of  the 
court  would  fail  if  it  appeared  that  the  corporation  attempted 
to  be  served  was  not  doing  business  in  the  State  of  Missouri, 
and  the  attempted  service  was  not  upon  one  of  its  agents. 
CarUey  v.  Mathieson  Alkali  Works,  190  U.  S.  406;  St.  Clair  v. 
Cox,  106  U.  S.  350;  Peterson  v.  Chicago,  Rock  Island  &  Pacific 
Ry.  Co.,  205  U.  S.  364;  Green  v.  C,  B.  &  Q.  Railway  Co.,  205 
U.  S.  530. 

Defendant  in  error  cites  the  case  of  Smoot  v.  JvM,  184 
Missouri,  508,  in  which  it  was  held  that  where  a  sheriff's  re- 
turn recited  a  personal  service  of  process  which  was  false,  the 
remedy  of  the  unserved  defendant  against  whom  judgment 
by  default  had  been  taken,  in  the  absence  of  fraud  on  the  part 
of  the  plaintiff  in  the  suit,  was  in  an  action  on  the  sheriff's 
bond  for  damages  for  the  false  return,  and  not  by  a  suit  to  set 
aside  the  sheriff's  sale  and  deed  made  in  pursuance  of  the  de- 
fault judgment.  It  is  to  be  noted,  in  this  connection,  that  the 
attack  upon  the  service  in  that  case  was  made  after  judgment, 
and  not,  as  in  the  present  case,  by  a  motion  to  set  aside  the 


MECHANICAL  APPLIANCE  CO.  v,  CASTLEMAN.   443 
215  U.  S.  Opinion  of  the  Court. 

service  of  summons,  or  a  plea  to  the  jurisdiction  over  the  per- 
son. Moreover,  in  cases  which  concern  the  jurisdiction  of  the 
Federal  courts,  notwithstanding  the  so-called  conformity  act. 
Revised  Stats.,  §  914,  neither  the  statutes  of  the  State  nor  the 
decisions  of  its  courts  are  conclusive  upon  the  Federal  courts. 
The  ultimate  determination  of  such  questions  of  jurisdiction 
is  for  this  court  alone.  Western  Loan  &  Savings  Co.  v.  BtUte  & 
Boston  Consolidated  Mining  Co.,  210  U.  S.  368,  369;  Mexican 
Central  Railway  Co.  v.  Pinkney,  149  U.  S.  194. 

Defendant  in  error  also  relies  upon  the  cases  of  Walker 
V.  Robbins,  14  How.  584,  and  Knoz  County  v.  Harshman, 
133  U.  S.  152.  Neither  of  these  cases  control  the  one  under 
consideration.  In  Walker  v.  Robbins,  supra,  a  bill  in  equity 
was  filed  to  enjoin  enforcement  of  a  judgment  at  law,  entered 
upon  a  false  return  of  a  marshal  in  the  Circuit  Court  of  the 
Mississippi  District.  This  court  held  that  a  bill  in  equity  would 
not  lie  for  such  purpose,  and  further,  that  the  return  was  not 
false,  and  if  it  were,  the  defendant  Walker  waived  the  want  of 
service  by  pleading  to  the  merits  of  the  action.  It  was  there 
said  by  Mr.  Justice  Catron,  delivering  the  opinion  of  the  court 
(p.  585):  "In  cases  of  false  returns  afifecting  the  defendant, 
where  the  plaintiff  at  law  is  not  in  fault,  redress  can  only  be 
had  in  the  court  of  law  where  the  record  was  made,  and  if  re- 
lief cannot  be  had  there,  the  party  injiu^d  must  seek  his 
remedy  against  the  marshal." 

The  case  was  decided  upon  the  grounds  which  we  have 
stated,  and  the  language  quoted,  and  relied  upon  by  the  de- 
fendant in  error  is  very  far  from  indicating  that  a  party  might 
not  appear  specially  and  object  to  service  of  summons,  and 
move  to  set  aside  the  same,  and  to  dismiss  the  action  upon  the 
grounds  which  are  involved  in  the  case  at  bar. 

In  Knox  County  v.  Harshman  a  bill  in  equity  was  filed  for  an 
injunction  against  the  prosecution  of  a  writ  of  mandamus  to 
enforce  the  levy  of  a  certain  tax  against  the  county.  The  biU 
alleged  that  neither  the  county  court  nor  any  of  the  judges 
thereof  had  any  notice  of  the  suit  until  after  the  end  of  the 


444  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

term  at  which  judgment  was  rendered,  and  that  no  service 
of  summons  was  made  upon  Frank  P.  Hall,  the  county  clerk, 
as  was  stated  in  the  marshal's  return.  This  court,  in  an  opin- 
ion by  Mr.  Justice  Gray,  held  that  a  court  of  equity  would  not 
interfere  with  the  judgment,  under  the  circumstances  shown, 
and  as  to  the  officer's  return  of  service  of  copy  of  the  sum- 
mons on  the  clerk,  if  false,  no  fraud  having  been  charged  or 
proved  against  the  petitioner,  redress  must  be  sought  in  an 
action  at  law,  and  not  by  a  bill  in  equity;  and  that  if  the 
questions  of  fact  could  be  considered  as  open  in  the  case,  the 
proof  at  the  hearing  showed  that  service  had,  in  fact,  been 
made. 

Neither  of  these  cases  involved  the  right  of  the  defendant 
to  appear  upon  attempted  service  in  an  action  at  law,  and  by 
motion,  or  plea  for  that  purpose,  raise  the  question  of  juris- 
diction over  his  person.  The  case  of  Wabash  Western  Railway 
Co.  V.  BroWf  164  U.  S.  271,  is  much  closer  in  its  analogy  to  the 
case  at  bar.  In  that  case  suit  was  commenced  in  the  state 
court,  in  Michigan,  against  the  Wabash  Western  Railway 
Company  to  recover  in  an  action  for  damages.  The  service  of 
summons  and  copy  of  the  declaration  was  made  upon  one  Hill 
as  agent  of  the  company.  The  case  was  removed  to  the 
Federal  court  for  the  Eastern  District  of  Michigan.  The  rail- 
road company  thereupon  appeared  and  moved  to  set  aside  the 
declaration  and  rule  to  plead,  upon  the  ground  of  want  of 
jurisdiction,  and  filed  an  affidavit  showing  that  Hill,  upon 
whom  the  service  had  been  attempted,  was  the  freight  agent 
of  the  Wabash  Railroad  Company,  a  corporation  which  owned 
and  operated  a  railroad  from  Detroit  to  the  Michigan  state 
line,  and  was  not  an  agent  of  the  Wabash  Western  Railway 
Company,  the  defendant  in  the  suit;  and,  at  the  time  of  the 
attempted  service,  the  defendant  did  not  own,  operate  and 
control  any  railroad  in  the  State  of  Michigan,  had  no  place  of 
business  therein,  and  was  not  doing  business  within  the  State. 
The  action  was  overruled  by  the  Circuit  Court,  the  objection 
to  the  jurisdiction  was  renewed  when  the  defendant  filed  its 


MECHANICAL  APPLIANCE  CO.  v.  CASTLEMAN.   445 
215  U.  S.  Opinion  of  the  Ck)iirt. 

plea  and  before  trial  in  the  case,  which  resulted  in  a  verdict  and 
judgment  in  favor  of  Brow. 

The  Court  of  Appeals  for  the  Sixth  Circuit  held  that  the 
filing  of  the  petition  for  removal,  in  general  terms,  had  effected 
the  appearance  of  the  Wabash  Western  Railway  Company  to 
the  action.  This  court,  in  an  opinion  by  Mr.  Chief  Justice 
Fuller,  held  that  the  record  disclosed  that  the  corporation  at 
the  time  of  the  attempted  service  was  neither  incorporated 
nor  doing  business,  nor  had  any  agent  nor  property  within  the 
State  of  Michigan,  and  that  the  individual  upon  whom  service 
had  been  attempted  was  not  the  agent  or  an  officer  of  the 
corporation,  and,  therefore,  no  jurisdiction  was  acquired  over 
the  person  of  the  defendant  by  the  attempted  service;  and, 
further,  that  the  petition  for  removal  did  not  efifect  an  appear- 
ance in  the  case,  consequently  reversing  the  judgment  of  the 
Circuit  Court  of  Appeals  and  remanding  the  case  to  the  Circuit 
Court,  with  directions  to  grant  a  new  trial,  and  to  sustain  the 
motion  to  set  aside  the  service  and  dismiss  the  action. 

The  Circuit  Court  should  have  considered  the  question  upon 
the  issues  of  fact  raised,  as  to  the  presence  of  the  corporation 
in  Missouri  and  the  authority  of  the  agent  upon  whom  service 
had  been  attempted.  It  is  true,  as  suggested  by  the  defendant 
in  error,  that  the  affidavits  appearing  in  the  bill  of  exceptions 
are  stated  to  have  been  filed,  and  there  is  no  definite  state- 
ment that  they  were  offered  to  be  read  in  evidence,  but  we 
think  it  is  apparent  that  they  were  filed  for  that  purpose.  No 
objection  appears  in  the  record  to  the  filing  of  the  affidavits;  on 
the  other  hand,  it  appears  that  the  plaintiff  below  also  filed 
an  affidavit.  These  affidavits  are  made  part  of  the  record  by  a 
bill  of  exceptions  and  we  think  they  should  have  been  con- 
sidered upon  the  question  of  jurisdiction. 

As  we  have  already  indicated,  the  learned  Circuit  Court  was 
in  error  in  holding  that  the  return  of  the  sheriff  in  the  state 
court  concluded  the  parties,  and  had  it  considered  the  affida- 
vits exhibited  in  the  bill  of  exceptions,  as  in  our  view  it  should 
have  done,  the  conclusion  would  have  been  reached  that  the 


446  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

weight  of  the  testimony  disclosed  that  the  defendant  corpora- 
tion was  not  doing  business  in  the  State  of  Missouri  at  the 
time  of  the  attempted  service  of  process,  and  that  the  person 
named  in  the  return  of  the  sheriff  was  not  at  that  time  the 
duly  authorized  agent  of  the  defendant  corporation. 

Holding  these  views,  the  judgment  of  the  Circuit  Court  is 
reversed,  and  the  cause  remanded  to  that  court  with  directions 

to  dismiss  the  case  for  want  of  jurisdiction. 

Reversed. 


<•»■ 


HAFFNER  t?.  DOBRINSKI. 

APPEAL  FROM  THE  SUPREME  COURT  OF  THE  TERRrTGRY  OF 

OKLAHOMA. 

No.  35.    Submitted  November  12,  1909.— Decided  January  10,  1910. 

In  order  that  specific  performance  may  be  decreed  on  the  ground  of 
part  performance  the  acts  done  and  relied  on  by  the  party  seeking 
relief  must  be  such  that  damages  would  not  be  adequate  relief. 

Specific  performance  rests  in  judicial  discretion  to  be  exercised  ac- 
cording to  settled  principles  of  equity  and  with  reference  to  the 
facts  in  the  particular  case,  and  it  may  be  refused  where,  as  in  this 
case,  the  conditions  do  not  appeal  to  equitable  consideration,  even 
in  case  of  part  performance. 

The  Supreme  Court  of  Oklahoma  did  not  err  in  refusing  to  decree 
specific  performance  in  a  case  where  complainant  had  funds  in  his 
possession  sufiicient  to  cover  his  damages,  if  any,  and  where  that 
court  held  that  the  allied  contract  was  unreasonable  in  its  pro- 
visions, lacked  mutuality,  and  the  part  performance  did  not  take 
the  contract  out  of  the  statute  of  frauds. 

17  Oklahoma,  438,  affirmed. 

The  Supreme  Court  of  Oklahoma,  from  whose  judgment 
affirming  the  decree  of  the  District  Court  of  Kmgfisher  County 
this  appeal  was  prosecuted,  stated  the  case  as  follows  (17 
Oklahoma,  438): 

"This  action  was  brought  on  the  thirteenth  day  of  May, 


HAFFNER  r.  DOBRINSKI.  447 

215  U.  S.  Statement  of  the  Case. 

1902,  by  the  plaintifiP  in  error;  John  F.  Haffner,  against  the 
defendants  in  error,  for  the  specific  enforcement  of  an  oral 
contract  for  the  sale  of  real  estate.  Thereafter,  on  Janu- 
ary 14,  1903,  upon  the  application  of  the  plaintiff  in  error 
therefor,  a  restraining  order  was  issued  against  the  defendant 
in  error  Dobrinski,  restraining  him  from  prosecuting  certain 
actions  of  forcible  entry  and  detainer  which  he  had  brought 
against  Hafifner  in  the  Probate  Court  of  Kingfisher  County 
after  the  filing  of  the  petition  in  this  case,  and  which  involved 
the  land  in  controversy  herein.  This  order  was  made  con- 
ditional upon  Haffner  giving  bond  in  the  sum  of  $500.00, 
which  amount  was  later  increased  to  $1,000.00.    On  March  9, 

1903,  the  court  overruled  a  motion  to  dissolve  this  restraining 
order,  and,  upon  the  hearing  of  a  demurrer  filed  by  Dobrinski 
to  HafTner's  petition,  granted  leave  to  the  plaintiff  in  error 
to  amend.  On  March  18,  1903,  by  leave  of  court,  Hafifner 
filed  an  amended  petition,  upon  which  the  case  was  heard, 
which,  in  substance,  is  as  follows : 

"  'That  on  and  prior  to  September  4,  1901,  Dobrinski  was 
the  owner  in  fee  of  the  east  half  and  lots  3  and  4  of  sec.  31, 
twp.  17,  range  9,  west  of  the  Indian  Meridian,  in  Kingfisher 
County,  Oklahoma,  and  also  1,668  bushels  of  wheat  and 
30  bushels  of  oats.  That  on  said  date  Hafifner  and  Dobrinski 
entered  into  a  verbal  contract  for  the  sale  and  purchase  of 
said  land  and  personal  property,  for  a  total  consideration  of 
$3,820.00,  of  which  $920.00  was  for  the  oats  and  wheat.  A 
pajmient  of  $1,020.00  was  to  be  made  on  or  before  January  1, 
1902,  $600.00  of  which  was  to  be  applied  by  Dobrinski  on  a 
mortgage  then  on  the  premises,  and  a  warranty  deed  executed 
by  Dobrinski  to  the  plaintifif  in  error,  Hafifner.  At  the  same 
time  Hafifner,  upon  the  execution  of  said  deed,  was  to  execute 
to  Dobrinski  his  note  for  $2,800.00,  bearing  5  per  cent  in- 
terest per  annum,  payable  in  ten  years,  Hafifner  to  bind  him- 
self to  apply  upon  the  said  indebtedness  all  of  the  proceeds 
arising  from  the  crops  raised  upon  said  land,  over  and  above 
cost  of  raising  the  same.    That  in  pursuance  of  said  oral 


448  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  XJ.  S. 

contract  Haffner  paid  Dobrinski  $50.20,  and  on  the  day 
following,  September  5,  1901,  took  peaceable  possession  of 
the  premises  and  personal  property,  made  minor  improve- 
ments about  the  farm,  planted  about  $60.00  worth  of  trees 
and  sowed  one  hundred  acres  of  the  land  to  wheat  and  ten 
acres  to  oats.' " 

"The  petition  then  alleges  that  Dobrinski  on  November  30, 
1901,  conveyed  the  premises  by  warranty  deed  to  one  John  A. 
Webber,  for  the  consideration  of  $1,700.00,  and  that  Webber 
later  on,  for  a  consideration  imknown  to  the  plainti£f  Haffner, 
at  the  instance  of  Dobrinski,  deeded  the  land  to  the  defendant 
in  error  Shultz.  Shultz,  however,  is  alleged  to  have  quit- 
claimed back  to  Dobrinski,  and  to  have  held  in  the  interim 
in  trust  for  Dobrinski.  The  petition  then  recites  that  prior 
to  the  first  of  January,  1902,  at  which  time  the  pajmient  of 
$1,020.00  was  to  be  made,  Haffner  notified  Dobrinski  that 
he  was  ready  and  willing  to  make  payment,  and  that  he  was 
at  that  time  and  ever  since  has  been  ready,  willing  and  able 
to  pay  said  sum,  less  the  pajmient  of  $50.20  theretofore  made, 
but  that  Dobrinski  refused  and  still  refuses  to  accept  the 
same.  That  Haffner  has  at  all  times  been  able,  ready  and 
willing  to  comply  with  his  contract,  and  offers  to  bring  into 
court  the  said  $1,020.00,  less  $50.20  paid,  and  to  execute  to 
Dobrinski  his  note  for  $2,800.00  secured  by  first  mortgage 
on  the  real  estate,  and  in  addition  thereto,  to  bring  into  court 
the  sum  of  $458.76,  which  it  is  alleged  is  the  proceeds  of  the 
farm,  over  and  above  outlay  for  help,  while  Haffner  has  held 
the  same.  Continuous  possession  of  the  premises  on  the  part 
of  Haffner  since  September  5,  1901,  is  then  alleged,  and  the 
petition  concludes  in  this  language:  'That  no  just,  fair  or 
adequate  assessment  of  damages  could  be  made,  and  that 
the  defendant  Michael  Dobrinski  is  not  financially  responsible 
for  any  adequate  amount  of  damages,  and  that  the  plaintiff 
has  no  plain  and  adequate  remedy  at  law,'  followed  by  a 
prayer  for  an  order  directing  Dobrinski  to  execute  a  warranty 
deed  in  accordance  with  the  terms  of  the  contract. 


HAFFNER  v,  DQBRINSKI.  449 

215  U.  S.  Opinion  of  the  Court. 

"To  this  amended  petition,  Shultz  filed  what  is  in  efifect  a 
disclaimer.  After  various  delays,  occasioned  by  motions  to 
strike  out  portions  of  the  first  answer,  Dobrinski  filed  an 
amended  answer  in  two  paragraphs,  and  later  withdrew  the 
second  paragraph,  and  stood  upon  the  first  alone.  This 
paragraph  of  Dobrinski 's  amended  answer  admits  his  owner- 
ship of  the  premises  and  personal  property  on  September  5, 
1901,  and  admits  that  Shultz  held  the  land  in  trust  for  him, 
and  then  contains  a  verified  general  denial  as  to  all  the  other 
allegations  in  the  amended  petition.  At  the  trial  Dobrinski 
objected  to  the  introduction  of  any  evidence,  'for  the  reason,' 
as  the  record  recites,  'that  the  petition  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action  against  the  defendant 
and  in  favor  of  the  plaintiff.'  This  objection  was  by  the  court 
sustained,  exception  saved,  motion  for  a  new  trial  filed  and 
overruled,  and  the  case  brought  here  for  review. 

"Error  is  predicated  upon  the  sustaining  of  the  objection 
to  the  introduction  of  evidence,  and  also  upon  the  refusal  of 
the  court  below  to  make  perpetual  the  restraining  order  above 
referred  to,  and  because  of  the  fact  that  plaintiff  in  error 
was  required  to  give  bond  when  the  order  was  obtained.  In 
their  brief,  counsel  for  plaintiff  in  error  enter  into  an  ex- 
tended argument  to  sustain  their  contentions,  first,  that 
oral  contracts  in  general,  relative  to  the  sale  of  real  estate, 
are  not  absolutely  inhibited  by  our  statute  of  frauds,  and, 
second,  that  if  the  statute  applies,  the  contract  declared  upon 
and  sought  to  be  enforced  in  this  action  is  not  within  its  scope, 
by  reason  of  part  performance  thereof." 

Mr.  Watson  E,  Coleman^  Mr.  L.  0.  H.  Alrvard  and  Mr. 
D.  W.  Buckner  for  appellant. 

Mr.  C.  C.  Flansbiirg  for  appellees. 

Mr.  Chief  Justice  Fuller,  after  making  the  foregoing 
statement,  delivered  the  opinion  of  the  court. 

The  Supreme  Court  of  Oklahoma  held  that  there  was  no 
VOL.  ccxv — 29 


450  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  IT.  S. 

error  in  excluding  all  the  evidence  because  the  petition  did 
'  not  state  a  cause  of  action  in  equity;  that  the  doctrine  is  well 
settled  that  specific  performance  is  never  demandable  as  a 
matter  of  absolute  right,  but  as  one  which  rests  entirely  in 
judicial  discretion,  to  be  exercised,  it  is  true,  according  to  the 
settled  principles  of  equity,  but  not  arbitrarily  and  capri- 
ciously, and  always  with  reference  to  the  facts  of  the  partic- 
ular case. 

The  principles  applied  were  announced  in  P(ype  Mantis 
facturing  Company  v.  GormvUy,  144  U.  S.  224,  236.    As  re- 
marked by  Mr.  Justice  Brown  in  that  case:  "To  stay  the  arm 
of  a  court  of  equity  from  enforcing  a  contract  it  is  by  no 
means  necessary  to  prove  that  it  is  invalid ;  from  time  to  time 
immemorial  it  has  been  the  recognized  duty  of  such  courts 
to  exercise  a  discretion;  to  refuse  their  aid  in  the  enforcement 
of  unconscionable,  oppressive  or  iniquitous  contracts;  and  to 
turn  the  party  claiming  the  benefit  of  such  contract  over 
to  a  court  of  law.    This  distinction  was  recognized  by  this 
court  in  Cathcart  v.  Robinson,  5  Pet.  264,  276,  wherein  Chief 
Justice  Marshall  says:  'The  difference  between  that  degree 
of  unfairness  which  will  induce  a  court  of  equity  to  interfere 
actively  by  setting  aside  a  contract,  and  that  which  will  in- 
duce a  court  to  withhold  its  aid,  is  well  settled.    10  Ves.  292; 
2  Coxe's  Cases  in  Chancery,  77.    It  is  said  that  the  plaintiff 
must  come  into  court  with  clean  hands,  and  that  a  defendant 
may  resist  a  bill  for  specific  performance,  by  showing  that 
under  the  circumstances  the  plaintiff  is  not  entitled  to  the 
relief  he  asks.    Omission  or  mistake  in  the  agreement,  or  that 
it  is  unconscientious  or  unreasonable,  or  that  there  has  been 
concealment,  misrepresentation  or  any  unfairness,  are  enu- 
merated among  the  causes  which  will  induce  the  court  to  refuse 
its  aid.' "     And  see  Hennessy  v.  Woolworthy  128  U.  S.  438, 
442;  Nickerson  v.  Nickerson,  127  U.  S.  668. 

And  the  Supreme  Court  of  Oklahoma  further  said  (p.  443) 
that  where  it  is  disclosed  by  complainant  himself  that  the 
contract  upon  which  he  bases  his  suit  "  is  unreasonable  in  its 


HAFFNER  v,  DOBRINSKI.  451 

215  U.  S.  Opinion  of  the  Court. 

provisions,  if  not  unconscionable,  and  void  under  the  statute 
of  frauds,  and  that  the  acts  done  and  relied  upon  to  warrant 
a  decree  on  the  ground  of  part  performance  are  not  of  such  a 
nature  that  damages  would  not  be  an  adequate  relief,  but, 
on  the  contrary,  that  he  has  within  his  immediate  control 
money  and  property  more  than  sufficient  to  compensate  him 
for  any  loss  sustained,  a  case  for  equitable  intervention  is 
not  shown,  and  upon  such  state  of  facts,  a  court  of  equity  is 
justified  in  refusing  specific  performance." 

In  short,  the  court  held  that  the  trial  court  was  fully  war- 
ranted in  refusing  to  require  the  alleged  contract  to  be  specifi- 
cally performed  as  being  so  unreasonable  in  its  provisions  as 
to  justify  such  refusal,  and  also  for  want  of  mutuality  and 
not  practically  enforceable  as  to  botJi  parties,  and  as  to  the 
part  performance  relied  on  to  take  the  contract  out  of  the 
statute  of  frauds,  that  the  contention  was  without  merit. 
The  doctrine  is  that  in  order  that  specific  performance  may 
be  decreed  on  the  ground  of  part  performance,  the  acts  done 
by  the  one  seeking  relief  and  relied  on  to  warrant  a  decree, 
must  be  of  such  a  nature  that  damages  would  not  be  an 
adequate  relief.  Williams  v.  Morris,  95  U.  S.  444.  But  here, 
as  the  lower  court  pointed  out,  the  plaintiff  showed  on  the 
face  of  his  petition  that  he  had  in  his  possession  money  be- 
longing to  the  defendant  adequate  to  cover  any  possible  dam- 
ages many  times  over.  He  had  paid  the  merely  nominal 
sum  of  $50.20  on  the  purchase  price,  entered  into  the  posses- 
sion of  the  property,  done  the  repairing  common  to  all  farmers, 
expended  $60  in  improvements,  and  prepared  110  acres  for 
crop.  But  he  had  in  his  own  control  the  $920  derived  from 
the  sale  of  the  wheat  and  oats,  and  in  addition  thereto  the 
sum  of  $458.76,  the  first  year's  returns  from  the  farm  above 
the  cost  of  obtaining  it.  In  other  words,  he  had  Uved  on  the 
farm  free  for  over  a  year;  had  almost  $1,400  of  the  other's 
money  in  his  hands,  and  now  complained  in  equity  that  fraud 
would  be  perpetrated  upon  him  if  the  court  does  not  enforce 
a  contract  which  will  allow  him  to  remain  nine  years  longer 


452  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  8. 

in  possession  of  the  land,  free  from  any  obligations  with  which 

defendant  can  force  him  to  comply  until  the  expiration  of 

that  time.     Such  a  condition  of  affairs  did  not  appeal  to 

equitable  consideration.     The  action  of  the  trial  court  was 

sustained  as  entirely  justified.    We  concur  in  that  conclusion, 

and  nothing  else  calls  for  comment. 

Judgment  affirmed. 


INTERSTATE  COMMERCE  COMMISSION  v,  ILLINOIS 
CENTRAL  RAILROAD  COMPANY. 

APPEAL  FROM  THE   CIRCUIT  COURT  OF  THE   UNITED   STATES 
FOR  THE   NORTHERN   DISTRICT   OF   ILLINOIS. 

No.  233.    Argued  October  15,  1909.— Decided  January  10,  1910. 

In  determining  whether  an  order  of  the  Interstate  Commerce  Com- 
mission shall  be  suspended  or  set  aside,  power  to  make — and  not  the 
wisdom  of — the  order  is  the  test  and  this  court  must  consider  all 
relevant  questions  of  constitutional  power  or  right,  all  pertinent 
questions  as  to  whether  the  administrative  order  is  within  the  scope 
of  the  delegated  authority  under  which  it  purports  to  be  made,  and 
also  whether  even  if  in  form  it  is  within  such  delegated  authority  it  is 
not  so  in  substance  because  so  arbitrary  and  unreasonable  as  to 
render  it  invalid. 

In  determining  whether  the  action  of  the  court  below  was  or  was  not 
correct,  this  court  does  so  irrespective  of  the  reasoning  by  which  such 
action  was  induced. 

The  equipment  of  an  interstate  railroad,  including  cars  for  transporta- 
tion of  its  own  fuel  are  instruments  of  interstate  commerce  and  sub- 
ject to  control  of  the  Interstate  Commerce  Commission. 

The  act  to  regulate  commerce  has  delegated  to  the  Interstate  Com- 
merce Commission  authority  to  consider,  where  complaint  is  made 
on  that  subject,  the  question  of  distribution  of  coal  cars,  including 
the  carrier's  own  fuel  cars,  in  times  of  car  shortage,  as  a  means  of 
prohibiting  unjust  preference  or  undue  discrimination. 

Under  §  15  of  the  act  to  regulate  commerce  as  amended  June  29,  1^06, 
c.  3591, 34  Stat.  585,  the  Interstate  Commerce  Commission  has  power 


INTERSTATE  COMM.  COMM.  v.  ILL.  CENT.  R.  R.  453 
215  U.  S.  Argument  for  Appellant. 

to  deal  with  preferential  and  discriminatory  regulations  of  carriers 
as  well  as  with  rates. 

It  is  not  beyond  the  power  of  the  Interstate  Commerce  Commission  to 
require  a  railroad  in  distributing  its  coal  cars  to  take  into  account 
its  own  fuel  cars  in  order  not  to  create  a  preference  of  the  mine  to 
which  such  cars  are  assigned  over  other  mines. 

Where  an  order  of  the  Interstate  Commerce  Commission  is  sustained 
by  the  court  below  in  part  and  only  the  Commission  appeals,  the  con- 
clusions of  the  court  below  as  to  those  portions  of  the  order  sustained 
are  not  open  to  inquiry  in  this  court. 

Even  if  commerce  in  regard  to  the  purchase  of  coal  at  a  mine  on  a 
railroad  line  by  the  railroad  company  which  supplies  its  own  cars 
may  end  there,  the  power  to  use  the  equipment  of  the  railroad  to 
move  the  coal  is  subject  to  the  control  of  the  Interstate  Commerce 
Commission  in  order  to  prevent  discrimination  against,  or  undue 
preference  of,  other  miners  and  shippers  of  coal. 

The  facts,  which  involve  the  question  of  whether  a  duty 
rested  upon  the  railroad  company  to  obey  an  order  made  by 
the  Interstate  Commerce  Commission  in  regard  to  the  distri- 
bution of  coal  cars,  are  stated  in  the  opinion. 

Mr,  Wade  H,  EUis,  Assistant  to  the  Attorney  General,  and 
Mr.  Luther  M,  Walter,  Special  Assistant  to  the  Attorney  Gen- 
eral, with  whom  Mr,  L.  A.  Shaver  and  Mr.  H.  B.  Arnold  were 
on  the  brief,  for  appellant : 

Under  §§  12,  13,  14  of  the  Hepburn  Act,  June  29,  1906,  34 
Stat.  584,  the  Interstate  Commerce  Commission  has  authority 
to  examine  into  and  decide  whether  or  not  a  railroad  company 
16  violating  any  of  the  provisions  of  the  Interstate  Commerce 
Act  with  respect  to  furnishing  cars,  and  to  direct  it  to  cease 
and  desist  from  such  violation  and  to  prescribe  just,  fair  and 
reasonable  regulations  with  respect  to  such  transportation. 

The  Commission  clearly  had  power  to  deal  with  unjust,  pref- 
erential and  discriminatory  regulations  and  practices  of  carriers 
under  §  15  of  the  act  as  it  stood  prior  to  the  Hepburn  Act. 
Whether  or  not  it  still  exists  under  §  15  of  the  amended  act 
must  be  ascertained  by  examining  the  whole  act  as  it  now 


454  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

stands,  with  a  view  to  gathering  the  general  intent  and  purpose 
of  Congress,  and  then  by  examining  the  various  provisions  by 
which  the  general  intent  and  purpose  are  sought  to  be  made 
effective. 

The  general  intent  and  spirit  of  the  act,  taken  with  the 
words  themselves,  show  that  the  commission  has  the  power. 
This  court  has  held  that  the  act  should  be  interpreted  reason- 
ably to  accomplish  its  great  purpose,  to  wit,  to  secure  just  and 
reasonable  charges,  to  prohibit  unjust  discriminations  and  to 
prevent  imdue  and  unreasonable  preferences.  New  Haven 
R.  R.  Co,  V.  Interstate  Commerce  Commissnon,  200  U.  S.  261. 

The  phrase  in  §  15  should  not  be  construed  to  mean  only 
those  practices  which  in  some  way  increase  or  diminish  the 
amount  of  freight  charges,  or  directly  affect  rates. 

An  order  of  the  commission  issued  in  pursuance  of  the  au- 
thority conferred  upon  the  commission  by  the  courts  is  a 
legislative  act;  it  becomes  the  law,  and  cannot  be  set  aside 
by  the  courts  unless  it  clearly  violates  constitutional  rights. 
KnoxvUle  v.  Water  Co,,  212  \\  S.  1,  8, 18;  Prentis  v.  AOarUic 
Coast  Line  Co.,  211  U.  S.  210, 226,  227;  WUlcox  v.  Cansdidated 
Gas  Co,,  212  U.  S.  19, 41;  Noyes  on  American  Railroad  Rates, 
203;  Sieenerson  v.  Great  Northern  Ry,  Co.,  69  Minnesota,  353. 

The  order  of  the  commission  must  stand  unless  it  appears, 
either  first  that  the  commission  failed  to  follow  the  procedure 
required  by  law,  or  second,  that  upon  the  face  of  the  proceed- 
ings, enforcement  of  the  order  would  amount  to  a  confiscation 
of  property.  The  so-called  court  review  provided  in  the  Hep- 
bum  Act  was  not  designed  to,  and  does  not,  give  the  Federal 
courts  any  larger  or  different  powers  to  protect  the  railroads 
from  an  invasion  of  constitutional  rights  than  such  courts 
would  have  possessed  without  any  declaration  on  the  subject. 
The  court  review  amendment  merely  confirms  the  jurisdiction 
of  the  court,  specifically  defines  the  venue  and  authorizes  suits 
against  the  commission  as  an  agency  of  the  Government.  The 
history  of  this  legislation  supports  no  other  conclusion. 

A  suit  to  sot  aside  an  order  of  the  commission  is  not  a  mere 


INTERSTATE  COMM.  COMM.  v,  ILL.  CENT.  R.  R.  455 
215  U.  S.  Argument  for  Appellant. 

appeal  from  an  inferior  to  a  superior  tribunal:  There  is  no  au- 
thority for  the  substitution  of  the  court^s  judgment  for  the 
conunission's  judgment.  The  only  thing  before  the  court,  if 
the  commission  proceeded  regularly  under  the  statute,  is  the 
result  reached.  The  courts  cannot  inquire  into  the  steps  by 
which  the  result  was  reached,  nor  consider  the  methods.  They 
have  the  same  and  no  greater  power  to  review  the  reasons 
which  control  the  commission  as  they  would  those  of  Congress. 

When  there  is  a  shortage  cf  cars,  not  enough  for  all,  then  the 
right  of  the  shipper  to  the  exclusive  use  of  his  private  cars,  and 
in  addition  to  a  full  share  of  the  system  cars  of  the  railroad 
company,  must  yield  to  the  requirements  of  the  law  that  all 
shippers  shall  have  an  equal  right  to  have  their  goods  trans- 
ported. 

The  shipper  furnishing  private  cars  is  not  penaUzed  for  using 
them  by  a  denial  to  him  of  a  full  share  in  addition  of  the 
system  cars  in  times  of  car  shortage,  because  at  such  times  he 
is  not  entitled  to  a  full  share  of  system  cars  if  to  give  him  such 
full  share  prevents  that  equality  in  the  transportation  facili- 
ties of  the  railroad  which  the  act  to  regulate  commerce  re- 
quires. 

The  cars  claimed  by  the  railroad  to  be  private  or  devoted  to 
a  special  use  are  in  fact  merely  rented  by  the  railroad  com- 
pany, and  ought  to  be  a  part  of  its  available  equipment. 

There  is  no  difference  in  principle  between  a  railroad  com- 
pany's own  fuel  cars  and  foreign  railway  fuel  cars  or  private 
cars  in  so  far  as  the  duty  exists  to  count  all  such  cars  against 
the  distributive  share  of  the  mines  receiving  them.  Logan 
Coal  Co.  V.  Pennsylvania  Railroad  Company,  154  Fed.  Rep. 
497;  United  States  v.  5.  &  0.  Railroad  Co.,  165  Fed.  Rep.  126; 
Majestic  Coal  Co,  v.  lUvnois  Central  Railroad  Co,,  162  Fed. 
Rep.  810. 

The  Ohio  Railroad  Commission  and  other  state  railroad 
commissions  have  held  that  it  is  the  duty  of  the  railroads  to 
count  their  private  fuel  cars  in  apportioning  the  distributive 
shares  of  the  available  equipment  to  the  mines.     Railroad 


456  OCTOBER  TERM,  1909. 

Argument  for  Receivers  of  the  Illinois  Collieries  Co.     215  XJ.  S. 

Commission  of  Ohio  v.  Hocking  Valley  Ry.  Co,,  12 1.  C.  C.  Rep. 
398;  Traer,  Receiver,  v.  Chicago  &  Alton  R.  R.  Co,,  13  I.  C.  C. 
Rep.  451  ;R,<SkR,  Cod  Co,  v.  Bolt:  <Sk  Ohio,  14  I.  C.  C.  Rep.  86. 

Mr,  Eldon  J,  Cassoday,  and  Mr,  Rush  C,  Bu&er  for  Re- 
ceivers of  the  Illinois  Collieries  Company  submitted  a  brief  by 
leave  of  the  court : 

The  method  of  distribution  of  cars  to  be  used  in  interstate 
commerce  is  within  the  provisions  of  the  act  to  regulate  com- 
merce and  within  the  jurisdiction  of  the  Interstate  Commerce 
Commission.  Sections  1,  3,  Act  to  Regulate  Commerce; 
United  States  ex  rd,  Pitcaim  Coal  Co.  v.  B.  &  0,  R,  R.  Co.,  154 
Fed.  Rep.  108;  B,  &  0,  R,  R.  Co,  v.  United  States  ex  rd.  Pitr 
cairn  Cod  Co,,  165  Fed.  Rep.  113;  S.  C,  91  C.  C.  A.,  147; 
Logan  Cod  Co.  v.  Penn.  R.  Co,,  154  Fed.  Rep.  497;  United 
States  ex  rd,  v.  N.  &  W,  Ry,  Co.,  143  Fed.  Rep.  266;  S.  C, 
74  C.  C.  A.  404;  Kingvxyod  Cod  Co,  v.  W,  Va,  N,  Ry,  Co,,  125 
Fed.  Rep.  252;  W,  Va,  N,  R.  Co.  v.  Kingwood  Cod  Co,,  134 
Fed.  Rep.  198,  204;  S.  C,  67  C.  C.  A.  220;  United  States  v. 
Oregon  R.  &  N.  Co.,  159  Fed.  Rep.  975;  Majestic  Cod  &  Coke 
Co.  V.  III.  Cent.  R,  R,  Co.,  162  Fed.  Rep.  810;  Ohio  R,  R.  Com- 
mission V.  Hocking  Valley  Ry,  Co,,  12  I.  C.  C.  Rep.  398,  404; 
Traer,  Receiver,  v,  C.  &  A,  R,  R,  Co,,  13  I.  C.  C.  Rep.  451; 
Royal  Cod  &  Coke  Co,  v.  Southern  Ry,  Co.,  13  I.  C.  C.  Rep. 
440;  Rail  &  River  Cod  Co,  v.  B,  &  0,  R,  R.  Co.,  14  I.  C.  C. 
Rep.  86. 

The  practice  of  the  appellees,  in  failing  and  refusing  to 
charge  against  the  percentage  or  distributive  number  of  cars 
to  which  certain  mines  would  be  entitled,  cars  sent  to  said 
mines  to  be  loaded  with  appellees'  own  fuel  supply,  is  an  un- 
just discrimination  against  the  other  coal  mines  on  said  lines 
of  railroad  and  is  a  violation  of  the  provisions  of  the  act  to 
regulate  commerce.    Section  3,  Interstate  Commerce  Act. 

The  railroad  company  and  a  shipper  do  not  stand  on  a  foot- 
ing of  equality.  N.  Y.  C.  R,  R.  Co.  v.  Lockwood,  17  Wall. 
357. 


INTERSTATE  COMM.  COMM.  r.  ILL.  CENT.  R.  R.  457 
215  U.  S.    Argument  for  Receivers  of  the  Illinois  Collieries  Co. 

The  right  to  use  such  cars  is  a  matter  separate  and  distinct 
from  and  not  in  any  way  dependent  upon  or  afifected  by  the 
coimting  or  failure  to  count  such  cars.  TraeTj  Receiver,  v.  C. 
&  A.  R.  R,  Co.,  13 1.  C.  C.  Rep.  457. 

The  appellees  use  their  practice  of  not  counting  such  cars  as 
a  scheme  or  device  to  give  an  advantage  to  the  mine  owner 
from  whom  they  buy  their  fuel,  so  as  to  influence  and  govern 
the  price  of  such  fuel.  Report  of  Interstate  Comm.  Comm.  to 
Congress,  January  25, 1907. 

The  railroad  companies  cannot  justify  their  practice  of  not 
coimting  such  cars  on  the  ground  that,  without  it,  they  would 
be  compelled  to  pay  a  higher  price  for  their  coal.  New  Haven 
R.  R.  Co.  V.  Interstate  Comm.  Comm.,  200  U.  S.  361,  399;  Tum^ 
pike  Road  Co.  v.  Sanfard,  164  U.  S.  578,  596;  Union  Pac.  R. 
Co.  V.  Goodridge,  149  U.  S.  680,  Smyth  v.  Ames,  169  U.  S.  466. 

The  rule  or  practice  of  counting  or  not  counting  cars  has 
been  before  the  court  and  the  commission  in  a  number  of  cases. 
Cases  s^upra,  and  Coffman  v.  N.  &  W.  R.  Co.,  109  Fed.  Rep.  831. 

The  contract  and  non-contract  mines  are  similarly  situated. 
Logan  Coal  Co.  v.  Pennsylvania  R.  Co.,  154  Fed.  Rep.  497; 
Majestic  Coal  &  Coke  Co.  v.  Illinois  Central  R.  R.  Co.,  162  Fed. 
Rep.  810. 

Such  practice  is  only  operative  during  times  of  car  shortage 
and  by  it  the  railroad  company  is  enabled  by  reason  of  its 
failure  to  furnish  adequate  equipment  to  obtain  a  reduction 
in  prices  and  to  give  to  its  contract  mines  an  undue  advantage 
over  non-contract  mines. 

Such  cars  even  when  in  use  by  the  railroad  company  in 
transporting  its  own  fuel  are  still  a  part  of  the  equipment  of 
the  road  and  within  the  terms  of  the  Interstate  Commerce  Act. 

The  cars  are  engaged  in  a  public  use  for  the  benefit  of  the 
public  and  not  alone  of  the  railroad  company. 

The  hauling  of  the  railroad's  own  fuel  coal  constitutes  a 
"carriage."    Section  1,  Interstate  Commerce  Act. 

Such  cars  are  used  to  obtain  coal  with  which  to  operate 
engines  and  trains  which  are  engaged  in  interstate  commerce 


458  OCTOBER  TERM,  1909. 

Argument  for  Appellees.  215  U.  S. 

and  are  therefore  an  indispensable  and  necessary  part  of  in- 
terstate commerce  itself.  Johnson  v.  So,  Pac.  Ry,  Co.,  196 
U.  S.  1. 

Even  though  such  cars  when  transporting  the  railroad's 
fuel  may  not  themselves  be  engaged  in  commerce,  strictly 
speaking,  the  failure  to  count  them  directly  affects  the  distri- 
bution of  the  remaining  cars  which  are  engaged  in  interstate 
commerce.  Galveston  &S,A,  Ry,  Co,  v.  Texas,  210  U.  S.  217; 
Loewe  v.  Lawlor,  208  U.  S.  274;  Addyston  Pipe  &  Sled  Co,  v. 
United  States,  175  U.  S.  211 ;  In  re  Dd)s,  158  U.  S.  564;  Atlantic 
Coast  Line  v.  Wharton,  207  U.  S.  328;  Employers'  Liability 
Cases,  207  U.  S.  463;  Northern  Securities  Co,  v.  United  States, 
193  U.  S.  197;  AsbeU  v.  Kansas,  209  U.  S.  251;  United  States 
v.  WeUs,  Fargo  Express  Co,,  161  Fed.  Rep.  606;  Inter,  Coram. 
Comm,  V,  Baird,  194  U.  S.  25;  Swift  &  Co,  v.  United  States, 
196  U.  S.  375;  Montague  v.  Loury,  193  U.  S.  38. 

A  comparison  of  the  practice  of  the  railroad  companies,  the 
plan  proposed  by  the  Circuit  Judge  and  the  practice  provided 
for  in  the  order  of  the  commission,  shows  unjust  discrimina- 
tion in  the  two  former  methods.  Ill,  Cent,  R,  R,  Co.  v.  In- 
terstate  Comm,  Comm,,  p.  52,  No.  502,  p.  60;  Traer,  Receiver, 
V.  C.  &  A.  R,  R,  Co,,  13  I.  C.  C.  Rep.  451,  455,  457. 

The  practice  of  the  railroad  companies  has  a  direct  and 
immediate  efifect  upon  the  distribution  of  cars  engaged  in  in- 
terstate commerce  and  is  an  unjust  discrimination  in  violation 
of  the  act  to  regulate  commerce.  Majestic  Coal  &  Coke  Co,  v. 
Illinois  Central  R.  Co,,  162  Fed.  Rep.  810;  N,  Y,,  N,  H.  &  H. 
R,  Co.  V.  Interstate  Commerce  Commission,  200  U.  S.  361. 

Mr,  W.  S.  Kenyan  and  Mr,  Garrard  B.  Winston,  with  whom 
Mr.  Robert  Mather,  Mr.  F.  S,  Winston  and  Mr.  J.  M.  Dickin- 
son were  on  the  brief,  for  appellees : 

The  order  of  the  Interstate  Commerce  Commission  establish- 
ing a  method  to  be  pursued  in  the  future  by  the  appellees 
relative  to  the  cars  used  for  their  own  fuel  supply  is  beyond 
the  power  of  that  commission. 


INTERSTATE  COMM.  COMM.  v,  ILL.  CENT.  R.  R.  459 
215  U.  S.  Opinion  of  the  Court. 

The  commission's  rule  of  distribution  is  not  a  regulation  of 
interstate  commerce.  Irder.  Comm.  Comm.  v.  Chicago  G,  W. 
Ry.  Co.,  209  U.  S.  108;  Exjyress  Cases,  117  U.  S.  1;  A.,  T,  &  S. 
F.  R.  R.  Co,  V.  /).  &  New  Orleans  R.  R.  Co.,  110  U.  S.  667; 
Donovan  v.  Pennsylvania  Co.,  199  U.  S.  279;  Central  Stock 
Yards  Co.  v.  Louisville  &  NashviUe  Ry.  Co.,  192  U.  S.  568; 
East  and  West  India  Dock  Co.  v.  Shaw,  Law  Rep.  39  Ch.  Div. 
524;  West  v.  London  &  Northwestern  Ry.  Co.,  Law.  Rep.  5 
C.  P.  622;  Tex.  &  Pac.  Ry.  Co.  v.  Inter.  Comm.  Comm.,  162 
U.  S.  197;  Inter.  Comm.  Comm.  v.  Baltimore  &  Ohio  R.  R.  Co., 
145  U.  S.  263;  Adair  v.  United  States,  208  U.  S.  161. 

Section  15  of  the  Interstate  Commerce  Act  does  not  em- 
power the  Interstate  Commerce  Commission  to  make  the 
order  enjoined.  C,  N.  0.  &  Tex.  Pac.  Ry.  Co.  v.  Inter.  Comm. 
Comm.,  162  U.  S.  184;  Inter.  Comm.  Comm.  v.  C,  N.  0.  &  T. 
P.  Ry.  Co.,  167  U.  S.  479. 

The  order  is  a  taking  of  private  property  prohibited  by  the 
Fifth  Amendment  to  the  Constitution  of  the  United  States. 
Missouri  Pacific  Ry.  Co.  v.  Nebraska,  164  U.  S.  403. 

By  leave  of  the  court,  Mr.  Francis  I.  Gowen,  and  Messrs. 
Wayne  MacVeagh,  McKenney  and  Flannery  filed  a  brief  on  be- 
half of  the  Pennsylvania  Railroad  Company. 

Mr,  Justice  White  delivered  the  opinion  of  the  court. 

Whether  a  duty  rested  upon  the  Illinois  Central  Railroad 
Company  to  obey  an  order  made  by  the  Interstate  Commerce 
Commission  is  the  question  here  to  be  decided. 

On  the  ground  that  preferences  were  created  and  dis- 
criminations engendered  by  regulations  established  by  the 
railroad  company  concerning  the  daily  distribution  of  coal 
cars  to  mines  along  its  line  in  periods  when  the  supply  of  such 
cars  was  inadequate  to  meet  the  demand  upon  it  for  the 
movement  of  coal,  the  order  in  question  commanded  the  rail- 
road company  to  desist  from  enforcing  the  regulations  found 
to  be  preferential,  and  for  a  future  period  of  two  years  to  de- 


460  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

liver  cars  to  mines  along  its  line  in  confonnity  with  the  rule 
announced  by  the  commission. 

A  clearer  perception  of  the  questions  to  be  considered  will  be 
afforded  by  giving  a  brief  statement  of  the  cause  of  car 
shortage  referred  to,  accompanied  with  a  mere  outline  of  the 
steps  generally  taken  by  carriers  to  deal  with  the  subject  and 
the  particular  method  applied  by  the  Illinois  Central  Railroad 
Company  prior  to  the  date  when  the  complaint  was  made 
against  it,  concerning  which  the  order  previously  referred  to 
was  entered. 

It  is  conceded  in  argument  that  bituminous  coal  mines, 
which  are  the  character  of  mines  here  involved,  must  dispose 
of  their  product  as  soon  as  the  coal  is  delivered  at  the  surface, 
as  it  is  not  practicable  for  an  operator  to  store  such  coal,  and 
the  amount  that  a  mine  will  produce  is  therefore  directly  de- 
pendent upon'  the  quantity  that  can  be  taken  away  day  by 
day.  As  a  result  of  this  situation  it  is  also  conceded  that  rail- 
roads upon  whose  lines  coal  mines  are  situated  piu^ue  a  system 
by  which  daily  deliveries  of  cars,  based  upon  requisitions  of  the 
respective  mines,  are  made  to  such  mines  to  permit  of  the  re- 
moval of  their  available  output  for  that  day. 

Notwithstanding  full  performance  by  railway  carriers  of 
the  duty  to  have  a  legally  sufficient  supply  of  coal  cars,  it  is 
conceded  that  unforeseen  periods  arise  when  a  shortage  of 
such  cars  to  meet  the  demand  for  the  transportation  of  coal 
takes  place,  because,  among  other  things,  a,  of  the  wide 
fluctuation  between  the  demands  for  the  transportation  of 
bituminous  coal  at  different  and  uncertain  periods;  6,  the 
large  number  of  loaded  coal  cars  dolivcTed  by  a  carrier  beyond 
its  own  line  for  transportation  over  other  roads  consequent 
upon  the  fact  that  the  coal  produced  at  a  particular  point  is 
normally  distributed  for  consumption  over  an  extensive  area; 
and,  c,  because  the  cars  thus  parted  with  are  subject  to  longer 
detentions  than  usually  obtain  in  the  case  of  shipments  of 
other  articles,  owing  to  the  fact  that  bituminous  coal  is  often 
shipped  by  mining  operators  to  distant  points  to  be  sold  after 


INTERSTATE  COMM.  COMM.  v.  ILL.  CENT.  R.  R.  461 
215  U.  S.  Opinion  of  the  Court. 

arrival,  and  is  hence  held  at  the  terminal  points  awaiting  sale, 
or  because,  owing  to  the  cost  of  handling  coal,  and  the  diffi- 
culty of  storing  such  coal,  the  car  in  which  it  is  shipped  is  often 
used  by  the  shipper  or  purchaser  at  the  terminal  points  as  a 
convenient  means  of  storage  or  as  an  instrument  for  delivery, 
without  the  expense  of  breaking  bulk,  to  other  and  distant 
points. 

It  is  disclosed  that  the  railroads  of  the  United  States  gener- 
ally, at  various  times,  put  in  force  regulations  for  the  distribu- 
tion of  coal  cars!  Generally  speaking,  these  regulations  pro- 
vide for  fixing  the  capacity  of  coal  mines  in  order  to  determine 
the  number  of  cars  to  which  each  might  normally  be  entitled 
to  daily  move  its  output  of  coal.  And  these  regulations  also 
provide  for  a  method  of  determining  the  jiro  rata  share  of  the 
cars  daily  allotted  for  distribution  in  times  of  car  shortage. 
Neither  the  method  by  which  capacity  was  to  be  ascertained 
nor  the  regulation  for  daily  distribution  upon  the  basis  of  such 
capacity  in  case  of  shortage  was  identical  among  the  various 
railroad  systems  of  the  United  States.  The  divergence,  and 
even  conflict,  between  those  systems  is  illustrated  by  the  cases 
of  Logan  Coal  Co.  v.  Pennsylvania  R,  R,  Co.j  154  Fed.  Rep. 
497;  United  States  ex  rel,  Pitcaim  Coal  Co.  v.  B,  &  0.  R,  R.  Co.j 
165  Fed.  Rep.  113;  cases  cited  at  pages  503  and  504  of  the  re- 
port of  the  Logan  Coal  Co.  case,  and  the  case  of  Majestic  Coal 
&  Coke  Co.  V.  lUimns  Central  R.  R.  Co.,  162  Fed.  Rep.  810. 

In  a  general  sense,  however,  all  the  regulations  of  the  various 
railroads,  either  for  ascertaining  the  capacity  of  coal  mines  or 
in  order  to  determine  the  pro  rata  share  for  daily  distribution 
of  cars  to  the  respective  mines  in  case  of  shortage  dealt  with 
four  classes  of  cars:  1,  system  cars,  that  is,  cars  owned  by  the 
carrier  and  in  use  for  the  transportation  of  coal ;  2,  company 
fuel  cars,  that  is,  cars  belonging  to  the  company  and  used  by  it 
when  necessary  for  the  movement  of  coal  from  the  mines  on  its 
own  line,  and  which  coal  had  been  bought  by  the  carrier  and 
was  used  solely  for  its  own  fuel  purposes;  3,  private  cars,  that 
is,  cars  either  owned  by  coal  mining  companies  or  shippers  or 


462  OCTOBER  TERM,  1909. 

Opinion  of  the  Ck>urt.  215  U.  S. 

consumers,  and  used  for  the  benefit  of  their  owners  in  convey- 
ing coal  from  the  mines  to  designated  points  of  delivery;  4, 
foreign  railway  fuel  cars,  that  is,  cars  owned  by  other  railroad 
companies  and  which  were  by  them  delivered  to  the  carriers 
on  whose  lines  mines  were  situated,  for  the  purpose  of  enabling 
the  cars  to  be  loaded  with  coal  and  returned  to  the  company 
by  whom  the  cars  had  been  furnished,  the  coal  being  intended 
for  use  as  fuel  by  such  foreign  railroad  companies. 

The  various  regulations,  irrespective  of  minor  differences 
between  them,  fell  upon  one  or  the  other  side  of  this  broad  line 
of  division.  One  system  took  into  account  class  2,  the  fuel  cars 
of  the  carrier,  class  3,  the  private  cars,  and  class  4,  the  cars  of 
foreign  railroads,  and  deducted  from  the  rated  capacity  of  the 
mine  the  sum  of  coal  delivered  by  that  mine  in  such  cars,  and 
upon  the  basis  thus  resulting  apportioned  ratably  in  case  of 
shortage  the  system  cars,  that  is,  those  embraced  in  class  1. 
On  the  other  hand  the  other  class  of  regulation  not  only  took 
no  account  of  the  cars  in  classes  2,  3  and  4,  as  a  means  of  rating 
the  capacity  of  the  mine,  but  moreover  did  not  charge  against 
any  mine,  for  the  purpose  of  ascertaining  the  daily  pro  rata 
of  the  cars  to  which  such  mine  was  entitled,  any  car  whatever 
furnished  such  mine  on  such  day  embraced  within  classes  2,  3 
and  4,  that  is,  any  company  fuel  car,  foreign  railway  fuel  car 
or  private  car.  By  this  system,  therefore,  where  a  mine  was 
entitled  daily  to  a  given  pro  rata  of  the  cars  subject  to  general 
distribution  it  received  its  full  share  of  such  cars,  and  in  ad- 
dition on  that  day  also  received  such  of  the  company  fuel  cars, 
foreign  railway  fuel  cars  and  private  cars  as  might  have  been 
sent  to  it  for  loading  on  that  day.  This  absolute  disregard  in 
the  allotment  of  the  company  fuel  cars,  foreign  railway  fuel 
cars  and  private  cars  was  not  in  all  respects  common  to  all  the 
systems  which  took  no  account  of  such  cars  in  fixing. capacity, 
since  in  some  of  the  regulations  one  or  the  other  of  the  classes 
was  taken  into  account  in  fixing  the  pro  rata  for  distribution. 

Previous  to  1907  the  Railroad  Commission  of  the  State  of 
Ohio  filed  with  the  Interstate  Commerce  Commission  two 


I 


INTEHSTATE  COMM.  COMM.  v,  ILL.  CENT.  R.  R.  463 

215  U.  S.  Opinion  of  the  Court. 

complaints  against  the  Hocking  Valley  and  another  railroad 
company.  These  complaints  were  based  upon  the  ground  that 
the  failure  of  the  railroads  in  times  of  car  shortage  to  include 
in  the  pro  rata  of  cars  for  distribution  foreign  railway  fuel  cars 
and  private  cars,  and  to  charge  the  mines  which  had  received 
such  cars  with  the  same  as  part  of  their  distributive  share, 
created  an  undue  preference  and  worked  unjust  discrimination 
in  violation  of  the  act  to  regulate  commerce.  On  July  11, 1907, 
the  report  and  opinion  of  the  commission  was  announced  in  the 
cases  referred  to.  R.  R.  Comm,  of  Ohio  v.  Hocking  Vol,  Ry,  Co., 
12  I.  C.  C.  Rep.  398.  It  was  declared  that  the  complaints 
were  well  founded,  and  the  relief  prayed  was  awarded.  Nine 
days  aftenvards — presumptively  in  ignorance  of  the  finding  of 
the  commission  just  referred  to-^the  Illinois  Central  Railroad 
Company  promulgated  rules  governing  the  distribution  of  cars 
to  coal  mines.  Although  by  these  rules  foreign  fuel  cars, 
private  cars  and  company  fuel  cars  were  not  taken  into  ac- 
count in  ascertaining  the  capacity  of  a  mine  or  mines,  such 
cars  were  expressly  directed  not  to  be  counted  for  the  purpose 
of  the  daily  distribution  of  cars  among  the  respective  mines. 
On  August  15  following,  however,  presumably  to  cause  the 
regulations  to  conform  to  the  interpretation  of  the  Interstate 
Commerce  Act  adopted  by  the  commission  in  the  Hocking 
Valley  case,  a  circular  was  issued  by  the  Illinois  Central  Rail- 
road Company,  to  go  into  effect  September  1,  1907,  cancelling 
the  circular  of  July  20, 1907,  and  directing  that  account  should 
be  taken  in  the  distribution  of  cars  to  a  particular  mine  or 
mines  of  both  foreign  railway  fuel  and  private  cars.  Before 
the  date  fixed  for  the  going  into  effect  of  this  last-named 
circular  the  Majestic  Coal  and  Coke  Company,  a  West  Virginia 
corporation,  filed  a  suit  against  the  Illinois  Central  Railroad 
Company  in  the  United  States  Circuit  Court  for  the  Northern 
District  of  Illinois,  complaining  that  to  charge  against  its  dis- 
tributive share  of  coal  cars,  in  the  event  of  a  car  shortage,  the 
fuel  cars  and  private  cars  furnished  it  would  violate  its  legal 
rights.    After  hearing,  a  temporary  injunction,  preventing  the 


464  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

going  into  effect  of  the  regulations  in  the  particulars  men- 
tioned, was  issued.  The  distribution  of  coal  cars  thereafter 
continued  to  be  made  as  provided  in  the  prior  circular. 

With  this  prelude  we  come  more  immediately  to  the  origin 
of  the  controversy  before  us. 

On  October  31^  1907,  the  Illinois  Collieries  Company  filed 
with  the  Interstate  Commerce  Commission  a  complaint  against 
the  Illinois  Central  Railroad  Company.  The  regulations  of  the 
railroad  company  as  to  the  distribution  of  coal  cars  were  as- 
sailed as  unjustly  discriminatory  in  violation  of  the  act  to 
regulate  commerce,  particularly  as  respected  the  practice  of 
not  taking  into  consideration  foreign  railway  fuel  cars  and 
private  cars  in  determining  the  distribution  of  coal  cars  among 
the  various  coal  operators  along  the  lines  of  the  railroad  on  in- 
terstate shipments  of  coal.  It  appears  that  the  complaint  just 
referred  to  was  heard  before  the  commission,  with  two  other 
complaints  against  other  railroads  involving  the  same  general 
subject.  In  its  report,  which  was  filed  in  all  three  of  the  cases 
on  April  13,  1908,  Traer  v.  Chicago  &  AUon  R.  R.  Co.,  13  I.  C. 
C.  Rep.  451,  the  commission  held  that  not  to  count  in  times  of 
car  shortage  when  the  daily  distributions  were  made  against 
the  mine  receiving  the  same  company  fuel  cars,  foreign  railway 
fuel  cars  and  private  cars  was  a  violation  of  the  act  to  regulate 
commerce.  In  announcing  this  conclusion  reference  was  made 
to  the  previous  opinion  of  the  commission  in  the  Hocking 
Valley  case,  swpra,  and  it  was  declared  that  the  Illinois  Central 
Railroad  Company  on  the  hearing  before  the  commission  had 
conceded  the  controlling  effect  of  the  previous  ruling  of  the 
commission.  Considering  the  temporary  injunction  issued  by 
the  Circuit  Court  of  the  United  States  for  the  Northern  Dis- 
trict of  Illinois,  the  commission  declared  that  in  view  of  the 
decision  of  this  court  in  the  case  of  the  TexcLs  &  Pacific  Ry. 
Company  v.  Abilene  Cotton  (HI  Co.,  204  U.  S.  426,  it  was  the 
duty  of  the  commission  to  order  the  carrier  to  desist  from  the 
unlawful  discrimination. 

Although  the  complaint  in  the  case  of  the  Illinois  Central 


INTERSTATE  COMM.  COMM.  v.  ILL.  CENT.  R.  R.  465 

215  U.  S.  Opinioa  of  the  Court. 

Railroad  Company  differed  from  the  complaints  in  the  two 
other  cases  which  were  considered  and  passed  upon  by  the 
commission  at  the  same  time,  in  that  it  did  not  assail  the 
failure  to  take  into  account  the  company  fuel  cars  in  making 
distribution  in  times  of  car  shortage,  nevertheless  the  com- 
mission declared  that  the  Illinois  Central  Railroad  Company, 
both  in  its  brief  and  argument,  had  conceded  the  importance 
of  the  subject  to  that  company  and  had  invoked  the  action 
of  the  commission  thereon. 

The  order  of  the  commission,  as  heretofore  stated,  there- 
fore not  only  directed  the  desisting  from  the  practice  of  fail- 
ing to  take  into  account  the  foreign  railway  fuel  cars,  private 
cars  and  the  company  fuel  cars,  but  also  required  the  carriers 
to  establish  regulations  for  a  period  of  two  years  from  July  1, 
1908,  providing  for  the  counting  of  all  such  cars.  The  gen- 
eral scope  of  the  order  was,  however,  qualified  by  expressly 
authorizing  a  railroad  company  to  deliver  to  a  particular 
mine  all  the  foreign  railway  fuel  cars,  the  private  cars  and 
the  company  fuel  cars  consigned  or  assigned  to  said  mine, 
even  although  the  number  thereof  might  exceed  the  jwo  rata 
share  of  the  cars  attributable  to  said  mine  when  ascertained 
by  taking  into  account  all  the  cars  which  the  order  required 
to  be  considered.  Where,  however,  the  number  of  such  cars 
was  less  than  the  jjto  raia  share  of  the  mine  the  order  only 
permitted  the  carrier  to  add  a  sufficient  number  of  system 
cars  to  make  up  the  rightful  pro  rata  number. 

Being  unwilling  to  comply  with  the  order  of  the  commis- 
sion, the  Illinois  Central  Railroad  Company  commenced  the 
suit  which  is  now  before  us  to  enjoin  in  all  respects  the  en- 
forcement of  the  order  of  the  commission.  It  was  averred 
that  although  the  company  was  adequately  equipped  with 
coal  cars  and  with  sufficient  motive  power  and  operative 
forces,  yet  at  times  an  inadequate  supply  of  coal  cars  to  meet 
the  demand  arose  from  the  circumstances  which  wc  have 
previously  stated.  It  was  alleged  that  the  regulations  adopted 
by  the  company  for  ascertaining  the  capacity  of  the  mines 
VOL.  ccxv— 30 


466  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

and  for  the  distribution  of  cars  were  in  all  respects  just  and 
reasonable,  and  it  was  charged  that  the  order  of  the  commis- 
sion, directing  the  taking  into  account  of  private  cars  in  the 
distribution  of  cars,  was  unjust,  unreasonable,  oppressive  and 
unlawful,  because  it  deprived  the  owners  of  such  cars  of  the 
right  to  the  use  of  their  own  property.    It  was  further  alleged 
that,  as  to  the  foreign  railway  fuel  cars,  the  order  was  also 
unjust,  unreasonable,  oppressive  and  unlawful,  because  such 
cars  constituted  no  part  of  the  equipment  of  the  road,  and, 
failing  to  count  them,  could  not  constitute  an  unlawful  dis- 
crimination or  the  giving  of  an  unjust  preference  within  the 
intendment  of  the  act  to  regulate  commerce.    Besides  chain- 
ing that  the  order  to  count  the  company  fuel  cars  was  unjust, 
unreasonable,  etc.,  it  was  averred  that  the  attempt  of  the 
commission  to  deal  with  such  cars  was  beyond  its  power,  and 
was  but  an  effort  to  deprive  the  company  of  its  lawful  right 
to  freely  contract  for  the  purchase  of  the  fuel  necessary  for 
the  operation  of  its  road.    In  addition,  the  proceedings  in  the 
suit  brought  by  the  Majestic  Coal  Company  were  set  out,  the 
granting  of  a  temporary  injunction  therein  as  to  counting 
foreign  railway  fuel  cars  and  private  cars  was  alleged,  and  it 
was  charged  that  in  any  event,  as  to  those  two  classes  of  cars, 
the  order  of  the  commission  was  not  lawful,  since  it  compelled 
the  company  to  violate  the  injunction  which  was  yet  in  force. 
The  commission  answered  by  asserting  the  validity  in  all  re- 
spects of  the  order  by  it  made,  substantially  upon  the  grounds 
which  had  been  set  out  in  its  report  and  opinion  announced 
when  the  order  was  made.    All  the  averments  in  the  com- 
plaint as  to  want  of  power  were  traversed  and  it  was  expressly 
charged  that  the  subject  of  the  distribution  of  coal  cars  as 
dealt  with  by  the  order  was  within  the  administrative  power 
delegated  to  the  commission  by  the  terms  of  the  act  to  reg- 
ulate commerce.    The  nature  and  character  of  the  preferences 
and  discriminations  which  had  led  the  commission  to  con- 
clude that  unlawful  discrimination  and  unjust  preference 
arose  from  the  failure  to  count  the  classes  of  cars  referred  to 


INTERSTATE  COMM.  COMM.  v.  ILL.  CENT.  R.  R.  467 
215  U.  S.  Opinion  of  the  Court. 

was  alleged  in  subdivision  XIV  of  the  answer,  a  portion 
whereof  is  reproduced  in  the  margin.^  A  certificate  as  to 
the  public  importance  of  the  cause  was  filed' by  the  Attorney 
General,  in  compliance  with  §  16  as  amended  by  the  act  of 
June  29,  1906,  34  Stat.  584,  c.  3591,  and  the  cause  was  there- 

^  XIV.  Defendant  avers  that  the  allotment  by  complainant  of  said 
foreign  railway  fuel  cars,  private  cars,  and  complainant's  fuel  cars  to 
the  mines  receiving  them  in  addition  to  the  full  distributive  shares  of 
such  mines  in  the  general  distribution  of  cars  by  complainant  and  the 
failure  by  complainant  to  count  and  charge  said  foreign  railway  fuel 
cars,  private  cars,  and  company  cars  against  the  mines  receiving  them, 
in  said  general  distribution,  results  in  undue  and  unreasonable  pref- 
erence or  advantage  to  the  mines  and  oi)erators  receiving  such  cars 
and  subjects  the  owners  and  operators  of  mines  which  do  not  receive 
such  cars  to  undue  and  unreasonable  prejudice  and  disadvantage  in 
the  following  respects,  to  wit: 

(a)  That  the  operator  receiving  the  foreign  railway  fuel  cars,  pri- 
vate cars,  or  company  fuel  cars  thereby  receives  a  higher  percentage 
of  cars  than  mines  of  equal  capacity  which  do  not  receive  such  cars. 

(6)  That  the  operator  receiving  the  foreign  railway  fuel  cars,  private 
cars,  or  company  fuel  cars  may  operate  his  mine  to  a  fuller  capacity 
and  thereby  reduce  the  cost  of  coal  per  ton,  resulting  in  an  increased 
profit  on  his  commercial  coal. 

(c)  That  the  operator  receiving  foreign  railway  fuel  cars,  private 
cars,  or  company  fuel  cars  is  enabled  to  increase  the  number  of  work- 
ing places  in  the  mine,  is  enabled  to  develop  his  mine  more  rapidly, 
is  enabled  to  increase  his  capacity  rating,  and  in  future  reratings  of 
such  mine  by  complainant  for  the  purposes  of  car  distribution  the 
mine  would  receive  a  higher  rating  and  consequently  a  larger  number 
of  cars  in  complainants'  general  distribution  of  cars. 

(d)  That  the  operator  receiving  the  foreign  railway  fuel  cars,  pri- 
vate cars,  or  company  fuel  cars  is  enabled  thereby  to  secure  and  hold  a 
laiger,  more  efficient,  and  regular  working  force  of  miners  and  laborers. 

(e)  That  the  development  of  the  mines  which  do  not  receive  the 
foreign  railway  fuel  cars,  private  cars,  or  company  fuel  cars  is  retarded 
in  inverse  ratio  as  the  development  of  the  mines  receiving  said  cars  is 
accelerated. 

(/)  That  by  the  arbitrary  allotment  of  the  foreign  railway  fuel  cars, 
private  cars,  or  company  fuel  cars  the  complainant  and  the  so-called 
foreign  railways  are  enabled  to  secure  low  prices  on  railway  fuel  be- 
cause the  operator  receiving  such  cars  is  enabled  to  produce  his  com- 


468  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

after  submitted  at  the  same  time  with  one  brought  by  the 
Alton  Railroad,  involving  a  similar  question,  to  a  Circuit 
Court  held  by  Judges  Grosscup,  Baker  and  Kohlsaat.  A 
single  opinion  was  announced  in  both  cases.  000  Fed.  Rep. 
000.  While  deciding  that  the  complainants  were  not  entitled 
to  relief  in  so  far  as  the  order  of  the  commission  concerned 
the  counting  of  foreign  railway  fuel  cars  and  private  cars,  it 
was  yet  held  that  the  railway  companies  were  entitled  to  an 
injunction  restraining  the  enforcement  of  the  orders  of  the 
commission  in  so  far  as  they  directed  the  taking  into  account 
of  the  cai*s  employed  by  the  company  in  hauling  its  own  fuel. 
The  conclusion  on  this  latter  subject  was  based  upon  the 
theory  that,  as  the  railroad  companies  took  the  coal  which 
they  bought  for  their  own  use  from  the  tipple  of  a  coal  mine, 
and  thereafter  moved  it  for  their  own  account  and  not  for 
commercial  purposes,  the  cars  used  for  that  purpose  could 
not  be  treated  as  being  engaged  in  commerce,  as  "commerce 
under  these  circumstances  ends  at  the  tipple."  The  court, 
however,  observed: 

"  But  this  does  not  mean  that  these  cars  do  not  affect  the 
problem  of  an  equitable  distribution  of  commercial  equip- 
ment. The  mine  operators  are  objects  of  interest  under  the 
interstate  commerce  law,  not  as  diggers  of  coal,  but  as  shippers 
who  tender  a  commercial  product  for  transportation  by  in- 
terstate common  carriers.  The  basis,  therefore,  on  which 
the  mines  in  a  district  should  be  rated  is  not  their  average 
output  as  a  physical  question,  but  the  average  output  which 
they  respectively  tender  for  transportation  in  commerce." 

And  in  accord  with  this  reasoning  it  was  in  conclusion  re- 


mercial  coal  at  much  lower  prices  than  do  the  mines  which  do  not  re- 
ceive such  arbitrary  cars. 

(g)  That  the  operator  of  the  mine  receiving  the  foreign  railway  fuel 
cars,  private  cars,  or  company  fuel  cars  is  thereby  enabled  to  make 
contracts  for  the  delivery  of  coal  distributed  over  a  long  period,  to  an 
extent  that  the  operator  of  the  mines  which  do  not  receive  such  cars 
cannot  do. 


INTERSTATE  COMM.  COMM.  v,  ILL.  CENT.  R.  R.  469 
215  U.  S.  Opinion  of  the  Court. 

marked  that  the  complainants  as  to  the  cars  used  for  hauling 
their  fuel  were  entitled  to  an  injunction  "against  their  being 
compelled  to  take  fuel  cars  into  consideration  except  as  a 
means  in  determining  the  true  capacities  of  the  mines  to 
tender  coal  to  them  for  transportation  in  commerce." 

From  the  final  decree  enjoining  the  commission  from  en- 
forcing its  order,  in  so  far  as  it  directed  the  taking  into  account 
the  company  fuel  cars  in  the  distribution  of  coal  cars  in  times 
of  car  shortage  and  in  so  far  as  it  directed-  the  future  taking 
such  cars  into  account,  the  Interstate  Commerce  Commission 
appeals. 

It  is  stated  in  the  brief  of  counsel  for  the  railroad  company 
that,  at  the  hearing  below,  despite  the  scope  of  the  prayer  of 
the  bill,  no  question  was  raised  by  the  railroad  company  as 
to  the  validity  of  the  order  of  the  commission  to  the  extent 
that  it  controlled  private  cars  and  foreign  railway  fuel  cars. 
Irrespective,  however,  of  this  admission,  as  the  Interstate 
Commerce  Commission  alone  has  appealed,  the  correctness  of 
the  conclusions  of  the  court  below  on  these  subjects  is  not 
open  to  inquiry.  And  this  also  renders  it  unnecessary  to  con- 
sider in  any  respect  the  effect  of  the  injunction  to  which  we 
have  previously  referred  as  issued  in  the  suit  filed  on  behalf 
of  the  Majestic  Coal  Company,  since  such  injunction  only 
related  to  foreign  railway  fuel  cars  and  private  cars.  Besides, 
it  is  stated  in  the  brief  of  counsel  that  before  the  decision  of 
this  case  the  preliminary  injunction  in  favor  of  the  Majestic 
Coal  Company  was  dissolved  and  no  appeal  was  taken  there- 
from. 

In  consequence  of  one  of  the  comprehensive  amendments 
to  the  act  to  regulate  commerce,  adopted  in  1906,  §  15,  Act 
June  29,  1906,  c.  3591,  34  Stat.  584,  589,  it  is  now  provided 
that  "all  orders  of  the  commission,  except  orders  for  the  pay- 
ment of  money,  shall  take  effect  within  such  reasonable  time, 
not  less  than  thirty  days,  and  shall  continue  in  force  for  such 
period  of  time  not  exceeding  two  years,  as  shall  be  prescribed 
in  the  order  of  the  commission,  unless  the  same  shall  be  sus- 


470  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

pended  or  set  aside  by  a  court  of  competent  jurisdiction." 
The  statute  endowing  the  commission  with  large  administra- 
tive functions,  and  generally  giving  effect  to  its  orders  con- 
cerning complaints  before  it  without  exacting  that  they  be 
previously  submitted  to  judicial  authority  for  sanction,  it 
becomes  necessary  to  determine  the  extent  of  the  powers 
which  courts  may  exert  on  the  subject. 

Beyond  controversy,  in  determining  whether  an  order  of 
the  commission  shall  be  suspended  or  set  aside,  we  must  con- 
sider, o,  all  relevant  questions  of  constitutional  power  or 
right;  6,  all  pertinent  questions  as  to  whether  the  adminis- 
trative order  is  within  the  scope  of  the  delegated  authority 
under  which  it  purports  to  have  been  made ;  and,  c,  a  propo- 
sition which  we  state  independently,  although  in  its  essence 
it  may  be  contained  in  the  previous  one,  viz.,  whether,  even 
although  the  order  be  in  form  within  the  delegated  power, 
nevertheless  it  must  be  treated  as  not  embraced  therein,  be- 
cause the  exertion  of  authority  which  is  questioned  has  been 
manifested  in  such  an  unreasonable  manner  as  to  cause  it,  in 
truth,  to  be  within  the  elementary  rule  that  the  substance, 
and  not  the  shadow,  determines  the  validity  of  the  exercise 
of  the  power.  Postal  Tdegraph  Cable  Company  v.  Adams, 
155  U.  S.  688,  698.  Plain  as  it  is  that  the  powers  just  stated 
are  of  the  essence  of  judicial  authority,  and  which,  therefore, 
may  not  be  curtailed,  and  whose  discharge  may  not  be  by 
us  in  a  proper  case  avoided,  it  is  equally  plain  that  such  per- 
ennial powers  lend  no  support  whatever  to  the  proposition 
that  we  may,  under  the  guise  of  exerting  judicial  power,  usurp 
merely  administrative  functions  by  setting  aside  a  lawful 
administrative  order  upon  our  conception  as.  to  whether  the 
administrative  power  has  been  wisely  exercised. 

Power  to  make  the  order  and  not  the  mere  expediency  or 
wisdom  of  having  made  it,  is  the  question.  While,  as  we 
have  seen,  the  court  below  reasoned  that  the  transportation 
of  coal  bought  from  a  mine  by  the  railroad  company  for  its 
own  use,  after  delivery  to  it  in  its  coal  cars  at  the  tipple,  was 


INTERSTATE  COMM.  COMM.  v.  ILL.  CENT.  R.  R.  471 
215  U.  S.  Opinioa  of  the  Court. 

not  commerce,  because  "commerce  under  these  circum- 
stances ends  at  the  tipple,"  it  yet  reasoned  that  such  coal  was 
within  the  control  of  the  interstate  commerce  law  to  the  ex- 
tent that  a  regulation  compelling  its  consideration,  for  the 
purpose  of  rating  the  capacity  of  a  mine  as  a  basis  for  fixing 
its  /TTO  rata  share  of  cans  in  times  of  shortage,  would  be  valid. 
Because  of  this  reasoning,  it  is  insisted,  it  appears  that  the 
court  below  but  substituted  a  regulation  which  it  deemed 
wise  for  one  which  it  considered  the  commission  had  inex- 
pediently adopted,  and  this  upon  the  assumption  by  the  court 
that  its  authority  was  not  limited  to  determining  power. 
Without  intimating  an  opinion  as  to  the  merits  of  the  propo- 
sition, we  put  it  aside  as  irrelevant,  since  we  must  decide 
whether  the  action  of  the  court  below  was  correct,  irrespec- 
tive of  the  reasoning  by  which  such  action  was  induced.  We 
further  also  dismiss  from  view  a  contention,  strenuously 
insisted  upon  in  argument  by  the  Government,  to  the  effect 
that  in  determining  the  issue  of  power  we  must  treat  the  rail- 
road company  as  being  at  fault  for  the  failure  to  daily  deliver 
all  the  cars  called  for  in  times  of  car  shortage.  We  put  it 
aside  because  it  is  in  direct  conflict  with  facts  expressly  ad- 
mitted or  impliedly  conceded  in  the  answer  of  the  Interstate 
Commerce  Commission,  and  from  which  facts  we  must  take 
it  for  granted  that  the  equipment  of  coal  cars  of  the  railroad 
company  was  reasonably  adequate  to  meet  all  normal  con- 
ditions, although  it  became  insufficient  at  times  because  of 
extraordinary  circumstances,  against  which  it  was  in  reason 
impossible  to  provide. 

We  think  the  issues  for  decision  will  be  best  disposed  of  by 
at  once  considering  the  contentions  advanced  by  the  railroad 
company  to  establish  that  there  was  a  want  of  power  in  the 
commission  to  make  that  portion  of  the  order  which  the  court 
below  enjoined.  Tho  contentions  on  this  subject  are  stated 
in  argument  in  many  different  forms,  and  if  not  in  some  re- 
spects contradictory,  are,  at  all  events,  confusing  since,  con- 
sidered logically,  we  think  they  virtually  intermingle  power 


x" 


472  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

and  expediency  as  if  they  were  one  and  the  same  thing.  We 
shall  not,  therefore,  in  making  an  analysis  of  the  contentions, 
follow  their  mere  form  of  statement,  but  shall  treat  them  all 
as  reducible  to  two  propositions,  viz:  First.  That  the  act  to 
regulate  commerce  has  not  delegated  to  the  commission  au- 
thority to  consider,  where  a  complaint  is  made  on  such  sub- 
ject, the  question  of  the  distribution  of  company  fuel  cars 
in  times  of  car  shortage  as  a  means  of  prohibiting  imjust 
preference  or  undue  discrimination.  Second.  That  even  if  such 
power  has  been  delegated  to  the  commission  by  the  act  to 
regulate  commerce,  the  order  whose  continued  enforcement 
was  enjoined  by  the  court  below  was  beyond  the  authority 
conferred  by  the  statute. 

As  the  Interstate  Commerce  Commission  alone  has  appealed, 
it  is  patent  that  those  portions  of  the  order  of  the  commission 
which  concern  foreign  railway  fuel  cars  and  private  cars,  and 
which  the  court  below  refused  to  enjoin,  are  not  open  to  in- 
quiry. The  suggestion  at  once  presents  itself  whether,  if 
these  subjects  are  not  open,  they  do  not  necessarily  carry 
with  them  the  question  of  company  fuel  cars,  on  the  ground 
that  the  three  classes  rest  upon  one  and  the  same  considera- 
tion, and  that  to  divorce  them  would  bring  about  conditions 
of  preference  and  discrimination  which  the  act  to  regulate 
commerce  expressly  prohibits.  In  view,  however,  of  the  great 
importance  of  the  questions  directly  arising  for  decision,  and 
the  fact  that  the  court  below  has  treated  the  company  fuel 
cars  as  distinct,  we  shall  not  be  sedulous  to  pursue  the  sug- 
gestion, and  come  at  once  to  the  propositions  of  power  pre- 
viously stated. 

First.  That  the  act  to  regulate  commerce  has  not  ddegated  to 
the  commission  authority  to  regulate  the  distribution  of  company 
fuel  cars  in  times  of  car  shortage  as  a  means  of  prohibiting  un- 
just preferences  or  undue  discrimination. 

When  coal  is  received  from  the  tipple  of  a  coal  mine  into 
coal  cars  by  a  railway  company,  and  the  coal  is  intended  for 
its  own  use  and  is  transported  by  it,  it  is  said  there  is  no  con- 


INTERSTATE  COMM.  COMM.  v,  ILL.  CENT.  R.  R.  473 
215  U.  S.  Opinion  of  the  Court. 

signor,  no  consignee  and  no  freight  to  be  paid,  and  therefore, 
although  there  may  be  transportation,  there  is  no  shipment, 
and  hence  no  commerce.  In  changed  form  these  propositions 
but  embody  the  reasoning  which  led  the  court  below  to  its 
conclusion  that,  under  the  circumstances,  commerce  ended 
at  the  tipple  of  the  mine.  The  deduction  from  the  proposition 
is,  as  the  movement  of  coal  under  the  conditions  stated  is  not 
commerce,  it  is  therefore  not  within  the  authority  delegated 
to  the  commission  by  the  act  of  Congress,  as  all  such  acts 
have  relation  to  the  regulation  of  commerce,  and  do  not, 
therefore,  embrace  that  which  is  not  commerce.  It  is  to  be  ^ 
observed,  in  passing,  that  if  the  proposition  be  well  founded, 
it  not  only  challenges  the  authority  of  the  commission,  but 
extends  much  further,  and  in  effect  denies  the  power  of  Con- 
gress to  confer  authority  upon  the  commission  over  the  sub- 
ject. In  all  its  aspects  the  proposition  calls  in  question  the 
construction  given  to  the  law  by  the  commission  in  every 
case  where  the  subject  has  been  before  it,  and  also  assails 
the  correctness  of  numerous  decisions  in  the  lower  Federal 
courts,  to  which  we  have  previously  referred,  where  the  sub- 
ject, in  various  forms,  was  considered.  It  goes  further  than 
this,  since  it,  in  effect,  seeks  to  avoid  the  fair  inferences  aris- 
ing from  the  regulations  adopted  by  the  railroad  company. 
Those  regulations,  in  providing  for  the  obligation  of  the  rail- 
road company  to  supply  cars,  and  recognizing  the  duty  of 
equality  of  treatment,  found  it  necessary,  by  express  pro- 
vision, to  provide  that  private  cars,  foreign  railway  cars  and 
company  fuel  cars  should  not  be  counted  against  the  mine 
on  the  day  when  furnished,  thus  implying  that,  under  the 
general  rule  of  equality,  if  not  restricted,  it  was  considered 
the  duty  would  exist  to  consider  such  cars.  The  contention, 
moreover,  conflicts  with  the  rule  which,  as  we  have  seen,  ob- 
tains in  other  and  great  systems  of  railroad,  by  which,  for 
the  purpose  of  avoiding  inequality  and  preference,  foreign 
railway  fuel  cars,  private  cars  and  company  fuel  cars  are 
made  one  of  the  factors  upon  which  a  mine  is  rated  in  order 


474  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

to  fix  the  basis  upon  which  its  distributive  share  of  cars  is  to 
be  allotted  in  case  of  car  shortage.  And,  from  this,  it  must 
follow,  if  the  proposition  contended  for  be  maintained,  that 
it  would  not  only  relieve  the  railroad  company,  whose  rights 
are  here  involved,  from  the  obligation  of  taking  into  account 
its  fuel  cars  in  the  making  of  the  distribution,  but  from  the 
duty  even  to  consider  them  for  the  purpose  of  capacity  rat- 
ing. As  a  result,  it  would  lead  to  the  overthrow  of  the  system 
of  rating,  prevailing  on  other  railroads,  by  which,  as  we  have 
said,  such  cars  are  taken  into  account,  a  consequence  which  is 
well  illustrated  by  the  case  of  Logan  Coed  Co.  v.  Pennsylvania 
R,  R,  Co,,  154  Fed.  Rep.  497. 

Under  these  conditions,  it  is  clear  that  doubt,  if  it  exist, 
must  be  resolved  against  the  soundness  of  the  contentions 
rehed  on.  But  that  rule  of  construction  need  not  be  invoked, 
as  we  think,  when  the  erroneous  assumption  upon  which  the 
proposition  must  rest  is  considered,  its  unsoundness  is  readily 
demonstrable.  That  assumption  is  this,  that  commerce  in 
the  constitutional  sense  only  embraces  shipment  in  a  tech- 
nical sense,  and  does  not,  therefore,  extend  to  carriers  en- 
gaged in  interstate  commerce,  certainly  in  so  far  as  so  engaged, 
and  the  instrumentalities  by  which  such  commerce  is  carried 
on,  a  doctrine  the  unsoundness  of  which  has  been  apparent 
ever  since  the  decision  in  Gibbons  v.  Ogden,  9  Wheat.  1,  and 
which  has  not  since  been  open  to  question.  It  may  not  be 
doubted  that  the  equipment  of  a  railroad  company  engaged 
in  interstate  commerce,  included  in  which  are  its  coal  cars, 
are  instruments  of  such  commerce.  From  this  it  necessarily 
follows  that  such  cars  are  embraced  within  the  governmental 
power  of  regulation  which  extends,  in  time  of  car  shortage, 
to  compelling  a  just  and  equal  distribution  and  the  preven- 
tion of  an  imjust  and  discriminatory  one. 

The  corporation  as  a  carrier  engaged  in  interstate  com- 
merce being  then,  as  to  its  interstate  commerce  business, 
subject  to  the  control  exerted  by  the  act  to  regulate  com- 
merce, and  the  instrumentalities  employed  for  the  purpose 


INTERSTATE  COMM.  COMM.  v.  ILL.  CENT.  R.  R.  475 
215  U.  S.  Opinion  of  the  Court. 

of  such  commerce,  being  likewise  so  subject  to  control,  we 
are  brought  to  consider  the  remaining  proposition,  which  is. 

Second.  That  even  if  power  has  been  delegated  to  the  comims- 
sum  by  the  act  to  regulate  commerce^  the  order  whose  contirmed 
enfoTcemenJt  was  enjoined  by  the  court  below  wa^  beyond  the 
authority  delegated  by  the  statute. 

In  view  of  the  facts  found  by  the  commission  as  to  pref- 
erences and  discriminations  resulting  from  the  failure  to 
count  the  company  fuel  cars  in  the  daily  distribution  in  times 
of  car  shortage,  and  in  further  view  of  the  far-reaching  pref- 
erences and  discriminations  alleged  in  the  answer  of  the  com- 
mission in  this  case,  and  which  must  be  taken  as  true,  as  the 
cause  was  submitted  on  bill  and  answer,  it  is  beyond  contro- 
versy that  the  subject  with  which  the  order  dealt  was  within 
the  sweeping  provisions  of  §  3  of  the  act  to  regulate  commerce 
prohibiting  preferences  and  discriminations.  But  it  is  con- 
tended that  although  this  be  the  case,  as  the  order  of  the 
commission  not  only  forbade  the  preferences  and  discrimina- 
tions complained  of,  but  also  commanded  the  establishment 
of  a  rule,  excluding  such  discriminations  for  a  future  definite 
period  of  not  exceeding  two  years,  the  order  transcended  the 
authority  conferred  upon  the  commission.  This  proceeds 
upon  the  assumption  that  §  15  of  the  act  to  regulate  com- 
merce, as  enacted  by  the  act  of  June  29, 1906,  while  conferring 
upon  the  commission  the  authority,  upon  complaint  duly 
made,  to  declare  a  rate  or  practice  affecting  rates  illegal,  and 
to  establish  a  new  and  reasonable  rule  or  practice  affecting 
such  rates  for  a  term  not  exceeding  two  years,  has  no  rela- 
tion to  complaints  concerning  preferences  or  discriminations, 
xmless  such  practices,  when  complained  of,  are  of  a  character 
to  affect  rates,  which  it  is  insisted  is  not  here  the  case.  The 
pertinent  part  of  the  section  in  question  (15)  reads  as  follows, 
34  Stat.  589: 

''That  the  commission  is  authorized  and  empowered,  and 
it  shall  be  its  duty,  whenever,  after  full  hearing  upon  a  com- 
plaint made  as  provided  in  section  13  of  this  act,  or  upon 


476  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

complaint  of  any  common  carrier,  it  shall  be  of  the  opinion 
that  any  of  the  rates,  or  charges  whatsoever,  demanded, 
charged,  or  collected  by  any  common  carrier  or  carriers,  sub- 
ject to  the  provisions  of  this  act,  for  the  transportation  of 
persons  or  property  as  defined  in  the  first  section  of  this  act, 
or  that  any  regulations  or  practices  whatsoever  of  such  car- 
rier or  carriers  affecting  such  rates,  are  unjust  or  unreason- 
able, or  unjustly  discriminatory,  or  unduly  preferential  or 
prejudicial,  or  otherwise  in  violation  of  any  of  the  proviaons 
of  this  act,  to  determine  and  prescribe  what  will  be  the  just 
and  reasonable  rate  or  rates,  charge  or  charges,  to  be  there- 
after observed  in  such  case  as  the  maximum  to  be  charged; 
and  what  regulation  or  practice  in  respect  to  such  transporta- 
tion is  just,  fair,  and  reasonable  to  be  thereafter  followed; 
and  to  make  an  order  that  the  carrier  shall  cease  and  desist 
from  such  violation,  to  the  extent  to  which  the  commission 
find  the  same  to  exist,  and  shall  not  thereafter  publish,  de- 
mand, or  collect  any  rate  or  charge  for  such  transportation 
in  excess  of  the  maximum  rate  or  charge  so  prescribed,  and 
shall  conform  to  the  regulation  or  practice  so  prescribed. 

''All  orders  of  the  commission,  except  orders  for  the  pay- 
ment of  money,  shall  take  effect  within  such  reasonable  time, 
not  less  than  thirty  days,  and  shall  continue  in  force  for  such 
period  of  time,  not  exceeding  two  years,  as  shall  be  prescribed 
in  the  order  of  the  commission,  unless  the  same  shall  be  sus- 
pended or  modified  or  set  aside  by  the  commission  or  be  sus- 
pended or  set  aside  by  a  court  of  competent  jurisdiction." 

The  contention  ^ves  to  the  words  found  in  the  earlier  part 
of  the  section,  "any  regulation  or  practice  whatsoever  of  such 
carrier  or  carriers  affecting  such  rates,"  a  dominant  and  con- 
trolling power  so  as  to  cause  them  to  limit  every  other  pro- 
vision in  the  section,  however  general  in  its  language.  We  do 
not  stop  to  critically  examine  the  provision  relied  upon  for 
the  purpose  of  pointing  out,  as  a  matter  of  grammatical  con- 
struction, the  error  of  the  contention,  because  we  think,  when 
the  text  of  the  section  is  taken  into  view  and  all  its  provisions 


INTERSTATE  COMM.  COMM.  v.  ILL.  CENT.  R.  R.  477 
215  U.  S.  Opinion  of  the  Court. 

are  given  their  natural  significance,  it  obviously  appears  that 
the  construction  rehed  upon  is  without  foundation,  and  that 
to  sustain  it  would  be  to  frustrate  the  very  purpose  which  it 
is  clear,  when  the  entire  provision  is  considered,  it  was  de- 
signed to  accomplish,  and  thus  would  be  destructive  of  the 
plain  intent  of  Congress  in  enacting  the  provision.  The  an- 
tecedent construction  which  the  Interstate  Commerce  Act 
had  necessitated,  and  the  remedial  character  of  the  amend- 
ments adopted  in  1906,  all  serve  to  establish  the  want  of 
merit  in  the  contention  relied  upon.  In  addition,  to  adopt 
it  would  require  us  to  hold  that  Congress,  in  enlarging  the 
power  of  the  commission  over  rates,  had  so  drafted  the  amend- 
ment as  to  cripple  and  paralyze  its  power  in  correcting  abuses 
as  to  preferences  and  discriminations  which,  as  this  court  has 
hitherto  pointed  out,  it  was  the  great  and  fundamental  pur- 
pose of  Congress  to  further. 

Conceding,  for  the  sake  of  the  argument,  the  existence  of 
the  preferences  and  discriminations  charged,  it  is  insisted, 
when  the  findings  made  by  the  commission  are  taken  into 
view  and  the  pleadings  as  an  entirety  are  considered,  it  re- 
sults that  the  discriminations  and  preferences  arose  from  the 
fact  that  the  railroad  company  «hose  to  purchase  its  coal  for 
its  fuel  supply  from  a  particular  mine  or  mines,  and  that,  as 
it  had  a  right  to  do  so,  it  is  impossible,  without  destroying 
freedom  of  contract,  to  predicate  illegal  preferences  or  wrong- 
ful discriminations  from  the  fact  of  purchase.  But  the  prop- 
osition overlooks  the  fact  that  the  regulation  addresses  itself, 
not  to  the  right  to  purchase,  but  to  the  duty  to  make  equal 
distribution  of  cars.  The  right  to  buy  is  one  thing  and  the 
power  to  use  the  equipment  of  the  road  for  the  purpose  of 
moving  the  articles  purchased  in  such  a  way  as  to  discrimi- 
nate or  give  preference  are  wholly  distinct  and  different 
things.  The  insistence  that  the  necessary  effect  of  an  order, 
compelling  the  counting  of  company  fuel  cars  in  fixing,  in 
case  of  shortage,  the  share  of  cars  a  mine  from  which  coal 
has  been  purchased  will  be  entitled  to,  will  be  to  bring  about 


n 


478  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

a  discrimination  against  the  mine  from  which  the  company 
buys  its  coal  and  a  preference  in  favor  of  other  mines,  but 
inveighs  against  the  expediency  of  the  order.  And  this  is 
true  also  of  a  statement  in  another  form  of  the  same  propo- 
sition, that  is,  that  if,  when  coal  is  bought  from  a  mine  by  a 
railroad  the  road  is  compelled  to  coimt  the  cars  in  which  the 
coal  is  moved  in  case  of  car  shortage,  a  preference  will  result 
in  favor  of  the  mine  selling  coal  and  making  delivery  thereof 
at  the  tipple  of  the  mine  to  a  person  who  is  able  to  consume 
it  without  the  necessity  of  transporting  it  by  rail.  At  best, 
these  arguments  but  suggest  the  complexity  of  the  subject,  and 
the  difficulty  involved  in  making  any  order  which  may  not  be 
amenable  to  the  criticism  that  it  leads  to  or  may  beget  some 
inequality.  Indeed,  the  arguments  just  stated,  and  others 
of  a  like  character  which  we  do  not  deem  it  essential  to 
specially  refer  to,  but  assail  the  wisdom  of  Congress  in  con- 
ferring upon  the  commission  the  power  which  has  been  lodged 
in  that  body  to  consider  complaints  as  to  violations  of  the 
statute  and  to  correct  them  if  found  to  exist,  or  attack  as 
crude  or  inexpedient  the  action  of  the  commission  in  per- 
formance of  the  administrative  fimctions  vested  in  it,  and 
upon  such  assumption  invoke  the  exercise  of  unwarranted 
judicial  power  to  correct  the  assumed  evils.  It  follows  from 
what  we  have  said  that  the  court  below  erred  in  enjoining 
the  order  of  the  commission,  in  so  far  as  it  related  to  com- 
pany fuel  cars,  and  its  decree  is  therefore  reversed,  and  the 
case  remanded  for  further  proceedings  in  conformity  with 
this  opinion. 

Mr.  Justice  Brewer  dissents. 


INTERSTATE  COMM.  COMM.  v,  CHICAGO  &c.  R.  R.  479 
215  U.  S.  Counsel  for  Parties. 


INTERSTATE  COMMERCE  COMMISSION  v.  CHICAGO 
&  ALTON  RAILROAD  COMPANY. 

APPEAL  FROM  THE  CIRCUIT  COURT  OF  THE  UNITED  STATES  FOR 

THE  NORTHERN  DISTRICT  OF  ILLINOIS. 

No.  232.    Argued  October  15,  1909.— Decided  January  10,  1910. 

Interstate  Commerce  Commission  v.  Illinois  Central  Railroad  Company, 
ante,  p.  452,  followed  as  to  power,  under  the  act  to  regulate  com- 
merce, of  the  Commission  to  make  reasonable  arrangements  for  the 
distribution  of  coal  cars  to  shippers,  including  cars  for  transporta- 
tion of  fuel  purchased  by  the  railroad  company  for  its  own  use. 

Where  the  case  is  submitted  on  bill  and  answer,  a  fact,  alleged  in 
the  complaint  and  denied  in  the  answer  and  for  which  proof  is  de- 
manded, cannot  be  considered,  especially  where,  as  in  this  case, 
there  is  a  contrary  finding  of  a  body  such  as  the  Interstate  Com- 
merce Commission. 

• 

The  facts  are  stated  in  the  opinion. 

• 

Mr.  Wade  H,  EUis,  Assistant  to  the  Attorney  General,  and 
Mr,  Luther  M.  Walter,  Special  Assistant  to  the  Attorney 
General,  with  whom  Mr,  L,  A,  Shaver  and  Mr.  H.  B.  Arnold^ 
were  on  the  brief,  for  appellant. 

Mr.  W.  S.  Kenyan  and  Mr,  Garrard  B,  Winston,  with  whom 
Mr,  Robert  Mather,  Mr,  F.  S.  Winston  and  Mr.  J.  M.  Dick- 
inson were  on  the  brief,  for  appellees. 

By  leave  of  the  court,  Mr,  Eldon  J,  Cassoday  and  Mr. 
Rush  C.  Butler  filed  a  brief  for  Receivers  of  the  Illinois  Col- 
lieries Company. 

By  leave  of  the  court,  Mr,  Francis  I.  Gowea  and  Messrs. 
Wayne  MacVeagh,  McKenney  and  Flannery  filed  a  brief  on 
behalf  of  the  Pennsylvania  Railroad  Company. 


480  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

Mr.  Justice  White  delivered  the  opinion  of  the  court. 

This  case  is  controlled  by  the  opinion  just  announced  in 
the  case  of  Interstate  Commerce  Commission  v.  Illinois  Central 
Railroad  Company,  ante,  p.  452.  The  complaints  made  to 
the  commission  were  alike  in  both  cases,  and  they  were 
heard  before  that  body  at  the  same  time,  and  one  report  was 
made  in  both  cases.  The  order,  in  both  cases,  was  the  same. 
Like  bills  for  injunction  were  filed  in  the  court  below,  and 
there  also  they  were  heard  together  and  were  disposed  of  in 
one  opinion.  There  is  only  this  difference  between  the  two 
cases.  In  this  the  bill  for  injunction  contained  the  following 
averment  concerning  a  small  number,  out  of  the  thousands 
of  coal  cars  forming  part  of  the  equipment  of  the  road : 

"That  your  orator  has  purchased  and  now  operates  on  its 
line  360  steel  hopper-bottom  coal  cars;  that  said  cars  are  of 
an  extreme  height,  to  wit,  ten  feet;  that,  by  reason  of  such 
height,  said  cars  can  be  unloaded  only  upon  specially  con- 
structed trestles;  that  no  consignees  to  whom  coal  is  shipped 
from  mines  on  your  orator's  line  own  or  have  the  use  of  such 
trestles,  and  that  such  cars  are  not  available  for  commercial 
shipment  of  coal.  And  your  orator  avers  that  it  at  all  times 
restricts  these  cars  to  the  service  of  hauling  your  orator's 
own  fuel  supply,  and  that  by  reason  of  such  restriction  and 
by  reason  of  the  fact  that  your  orator  alone  has  the  means 
of  unloading  said  hopper-bottom  cars,  said  cars  never  con- 
stitute a  part  of  your  orator's  equipment  available  for  com- 
mercial shipments  of  coal." 

The  answer  of  the  commission  denied  all  knowledge  of  the 
truth  of  the  averments  thus  made,  and  called  for  proof  on 
the  subject.  No  proof  was  made,  and  the  cause  was  sub- 
mitted to  the  court  below  on  bill  and  answer.  In  view  of  this 
fact,  and  in  consideration  moreover  of  the  weight  which  the 
law  gives  to  the  finding  of  the  commission,  as  to  the  existence 
of  unlawful  preference  and  the  operative  effect  of  the  order 
which  the  commission  made,  until  set  aside,  we  think  the  mere 


BALT.  &  OHIO  R.  R.  v,  PITCAIRN  COAL  CO.     481 
215  U.  S.  Syllabus. 

avennent  of  the  facts  referred  to  in  no  way  causes  this  case 
to  differ  from  the  Illinois  Central  case.  Of  course,  under 
these  circumstances  we  intimate  no  opinion  as  to  how  far  had 
the  facts  alleged  as  to  the  hopper  cars  been  established,  they 
would  to  the  extent  of  such  cars  have  taken  this  case  out  of 
the  rule  announced  in  the  Illinois  Central  case.  It  follows 
that  the  judgment  must  be  reversed  and  the  case  remanded 
for  further  proceedings  in  conformity  to  this  opinion. 

Mr.  Justice  Brewer  dissents. 


*♦» 


BALTIMORE  &  OHIO  RAILROAD  COMPANY  v.  UNITED 
STATES  EX  REL.  PITCAIRN  COAL  COMPANY. 

ERROR  TO  THE   UNITED   STATES  CIRCUIT  COURT   OF   AP- 
PEALS FOR  THE  FOURTH  CIRCUIT. 

No.  289.    Argued  October  18,  19,  1909.~Decided  January  10,  1910. 

Regulations  which  are  primarily  within  the  competency  of  the  Inter- 
state Commerce  Commission  are  not  subject  to  judicial  supervision 
or  enforcement  until  that  body  has  been  properly  afforded  an  op- 
portunity to  exert  its  administrative  functions.  Texas  &  Pacific 
Railway  Co,  v.  Abilene  Cotton  Oil  Co.,  204  U.  S.  426,  applied,  and 
SoiUhem  Railway  Co.  v.  Tift,  206  U.  S.  428,  distinguished. 

The  distribution  to  shippers  of  coal  cars  including  those  owned  by 
the  shippers  and  those  used  by  the  carrier  for  its  own  fuel  is  a  mat- 
ter involving  preference  and  discrimination  and  within  the  compe- 
tency of  the  Interstate  Commerce  Commission,  and  the  courts  can- 
not interfere  with  regulations  in  regard  to  such  distribution  until 
after  action  thereon  by  the  commission. 

Even  if  not  assigned  as  error,  this  court  will  consider  the  jurisdic- 
tional question  of  whether  there  is  power  in  the  court,  in  view  of 
the  provisions  of  the  a<*t  to  regulate  commerce,  to  grant  the  relief 
prayed  for  in  regard  to  matters  within  the  competency  of  the  In- 
terstate Commerce  Commission. 

Under  the  court  review  provisions  of  §  15  of  the  act  to  regulate  com- 
merce as  amended  in  1906,  the  courts  are  limited  to  the  question 
of  power  of  the  commission  to  make  the  order  and  cannot  consider 
the  wisdom  or  expediency  of  the  order  itself.  Interstate  Commerce 
Commission  v.  Illinois  Central  Railroad^  ante,  p.  452. 

VOL.   CCXV — 31 


482  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215 17.  S. 

Section  23  of  the  act  to  regulate  commerce,  although  added  thereto 
in  1889,  will  now  be  construed  in  the  light  of  §  15,  as  amended  in 
1906;  and  the  remedy  of  mandamus  is  limited  to  compelling  the 
performance  of  duties  which  are  either  so  plain  as  not  to  require  a 
prerequisite  exertion  of  power  by  the  Interstate  Commerce  Com- 
mission, or  which  plainly  arise  from  the  obligatory  force  given  by 
the  statute  to  existing  orders  rendered  by  the  commission  within 
the  lawful  scope  of  its  authority 

Petition  in  mandamus  by  a  shipper  averring  discrimination  in  dis- 
tribution of  coal  cars  by  the  Baltimore  and  Ohio  Railroad  dismissed 
because  the  matter  had  not  been  first  submitted  to  the  Interstate 
Commerce  Conunission. 

165  Fed.  Rep.  113,  reversed. 

The  facts  are  stated  in  the  opinion. 

Mr,  Hugh  L.  JBond,  with  whom  Mr,  W.  Ainswarth  Parker  was 
on  the  brief,  for  Baltimore  and  Ohio  Railroad  Company,  plain- 
tiff in  error. 

Mr.  Edgar  H.  Gans,  with  whom  Mr,  Charles  H.  MarkeU 
was  on  the  brief  for  Fairmont  Coal  Company  et  al.,  plaintiffs 
in  error. 

Mr,  William  A.  Glasgow ,  Jr,y  with  whom  Mr.  Frederick 
Dallam  was  on  the  brief,  for  defendants  in  error. 

Mr.  Justice  White  delivered  the  opinion  of  the  court. 

To  decide  the  merits  of  this  cause  will  require  us  to  de- 
termine the  legality  of  the  regulations  of  the  Baltimore  and 
Ohio  EAilroad  Company,  by  which  that  company  distributed 
cars  to  coal  mines  along  the  line  of  its  road  in  case  of  car 
shortage.  As  an  incident  to  this  general  question  we  would 
further  be  required  to  consider  the  relations,  irrespective  of  its 
mere  attributes  and  duties  as  a  common  carrier,  of  the  Balti- 
more and  Ohio  Railroad  with  various  coal  mines  along  the  line 
of  its  road  and  the  relation  with  or  control  over  some,  if  not  all, 
of  these  coal  mines  by  other  mines  or  mine  operators,  and  in 


BALT.  &  OHIO  R.  R.  r.  PITCAIRN  COAL  CO.    483 
215  U.  S.  Opinion  of  the  Court. 

addition  to  consider  the  relation  of  the  Baltimore  and  Ohio 
Railroad  with  the  Cumberland  and  Pennsylvania  Railroad. 
This  road  taps  the  main  track  of  the  Baltimore  and  Ohio  rail- 
road at  Cumberland,  Maryland,  proceeds  thence  to  the  state 
line  between  Maryland  and  Pennsylvania,  where  it  strikes  the 
Pennsylvania  Railroad,  and  passing  thence  through  a  country 
rich  in  bituminous  coal  deposits,  and  containing  coal  mines,  it 
reaches  Piedmont,  West  Virginia,  where  its  tracks  again  con- 
nect with  those  of  the  Baltimore  and  Ohio  Railroad.  As  an 
additional  incident  we  might  also  be  required  to  consider  the 
relation  or  control,  direct  or  indirect,  if  any,  which  the  Balti- 
more and  Ohio  Railroad  exerted  over  some,  if  not  all,  of  the 
coal  mines  along  the  line  of  the  Cumberland  and  Pennsylvania 
road.  Some,  therefore,  of  the  underlying  questions  involved 
in  the  cause,  if  we  may  consider  them,  are  similar  to  the  issues 
which  were  passed  upon  by  us  in  the  case  of  the  Interstate 
Commerce  Commission  v.  Illinois  Central  Railroad,  which  we 
have  just  decided,  ante,  p.  452.  While  referring  to  the  general 
situation  as  depicted  in  that  case,  we  think,  in  addition,  a 
mere  outline  sketch  of  the  conditions  existing  prior  to  the 
commencement  of  this  suit,  as  regards  the  matters  with  which 
it  is  concerned,  will  serve  to  render  clear  the  reasons  which 
control  us  in  deciding  it, 

The  Baltimore  and  Ohio  Railroad  Company,  a  corporation 
existing  imder  the  laws  of  Maiyland,  owned  and  operated  a 
railroad  or  railroads  in  the  States  of  Maryland,  West  Vir- 
ginia, Virginia,  Pennsylvania,  Ohio  and  other  States,  and,  as  a 
conmion  carrier,  was  engaged  in  interstate  commerce  between 
such  States.  The  main  line  of  said  road  west  of  Cumberland, 
Maryland,  passes  through  a  bituminous  coal  field,  which  is 
worked  by  many  coal  operators,  the  product  of  whose  mines 
depend  for  their  movement  to  market  in  interstate  conmierce 
on  the  facilities  for  such  movement  which  the  Baltimore  and 
Ohio  affords.  For  the  purpose  of  this  case,  the  coal  mines  re- 
ferred to  may  be  treated  as  situated  in  what  is  described  as 
the  Monongah  District  of  the  Baltimore  and  Ohio  Railroad. 


484  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

Regulations  of  the  Baltimore  and  Ohio  Railroad,  by  which 
mines  were  rated  in  order  to  fix  the  basis  for  a  fro  rata  distri- 
bution of  coal  cars  in  case  of  car  shortage,  had  their  peculiari- 
ties differing  from  other  roads.  They  were  based,  first,  upon 
the  capacity  of  the  mines;  second,  upon  the  previous  shipments 
by  the  mines  for  a  period  of  two  years,  the  capacity  counting 
as  one  and  the  previous  shipments  as  two.  The  capacity  was 
ascertained  by  considering  the  number  of  working  places,  etc., 
modified  by  taking  into  account  the  facilities  for  moving  the 
coal  out  of  the  mine,  such  as  tracks,  tipple,  etc.  The  previous 
shipments  were  taken  from  the  records  of  the  company  during 
periods  when  there  was  no  car  shortage.  Upon  the  basis  of  the 
capacity  thus  ascertained  the  regulations  of  the  company  for 
giving  each  mine  owner  in  the  case  of  shortage  its  percentage 
of  cars,  stated  in  the  most  summary  way,  were  briefly  these : 
In  the  first  place,  there  was  assigned,  out  of  the  general  mass 
of  cars  before  the  distribution  was  made,  such  cars  as  it  was 
deemed  the  Cumberland  and  Pennsylvania  Railroad  was  en- 
titled to.  This  was  done  by  no  fixed  rule,  but,  in  the  discre- 
tion of  the  traffic  manager,  generally  upon  the  basis  of  the 
percentage  of  shipments  of  coal  hauled  in  the  two  previous 
years  by  that  road.  The  estimated  mass  remaining  after  the 
deliveries  to  the  Cumberland  and  Pennsylvania  Railroad  were 
subjected  to  certain  arbitrary  assignments,  and  the  remainder, 
after  such  assignments  had  been  taken  out,  were  equally  dis- 
tributed among  the  mine  operators,  according  to  their  capacity 
rating.  The  arbitrary  deductions  which  were  made,  as  we 
have  just  stated,  were  these: 

1.  Baltimore  and  Ohio  Railroad  cars  placed  at  mines  for 
Baltimore  and  Ohio  fuel  coal. 

2.  New  mines  are  allotted  an  arbitrary  number  of  cars 
daily  or  weekly  for  development.  In  cases  where  the  inspec- 
tion shows  a  marked  increase  in  the  capacity  of  certain  mines, 
and  it  is  not  practicable  to  change  the  percentage  of  the  whole 
district,  proper  arbitraries  are  applied  pending  a  general  re- 
vision. 


SALT.  &  OHIO  R.  R.  v,  PITCAIRN  COAL  CO.    485 

215  U.  S.  Opinion  of  the  Court. 

3.  Cars  of  foreign  railroads  assigned  by  them  to  their  own 
fuel  trade. 

4.  Cars  of  individual  companies  placed  at  mines  owned  by 
such  companies  and  cars  owned  by  individual  consumers 
placed  at  mines  for  their  coal. 

There  are  also  certain  exceptions  of  a  local  character,  as 
follows : 

1.  Curtis  Bay  premium.  Whenever  a  shipper  on  the  Balti- 
more and  Ohio  Railroad  handles  cars  at  Curtis  Bay  promptly 
in  any  one  month,  he  is  allowed  in  the  succeeding  month  a 
premium  of  fifty  per  cent  of  the  number  of  cars  so  handled,  in 
addition  to  his  regular  percentage.  This  in  lieu  of  an  assign- 
ment of  cars  to  the  Curtis  Bay  trade. 

2.  At  certain  points,  noted  on  the  percentage  sheets,  an 
arbitrary  number  of  cars  is  assigned  to  mines  on  fire. 

3.  At  certain  mines  in  the  immediate  vicinity  of  industries, 
empty  cars  intended  for  loading  at  such  industries  are  first 
sent  into  the  mines  for  loading  coal  for  such  industries. 

4.  When  annual  contracts  are  placed  for  foreign  railroad 
fuel  coal  with  mines  on  the  Baltimore  and  Ohio,  arrangements 
are  made  that  if  the  foreign  railroads'  cars  are  furnished  for 
this  fuel  coal,  the  Baltimore  and  Ohio  will  allow  the  mines 
shipping  the  coal  a  number  of  Baltimore  and  Ohio  cars  equal 
to  the  foreign  cars  furnished. 

5.  When  mines  are  connected  with  foreign  railroads  as  well 
as  with  the  Baltimore  and  Ohio,  their  rating  is  reduced  fifty 
per  cent.  A  similar  reduction  is  made  in  cases  where  mines  are 
located  near  rivers  and  are  equipped  for  loading  boats. 

Where  mines  needed  box  and  stock  cars  for  the  shipment 
of  coal,  as  to  which  class  of  cars  shortage  rarely  arose,  there 
was  a  special  rule  which  we  need  not  notice. 

With  the  system  just  referred  to  in  force  on  the  nineteenth  of 
January,  1907,  the  Pitcaim  Coal  Company,  a  West  Virginia 
corporation,  owning  a  coal  mine  on  the  line  of  the  Baltimore 
and  Ohio  Railroad  in  West  Virginia,  filed  its  petition  in  manda- 
mus in  the  United  States  Circuit  Court  for  the  District  of 


486  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

Maryland.  The  defendants  were  the  Baltimore  and  Ohio  Rail- 
road Company,  the  Fairmont  Coal  Company,  the  Clarksbxirg 
Fuel  Company,  the  Pittsburg  and  Fairmont  Fuel  Company 
and  the  Southern  Coal  and  Transportation  Company,  these 
four  coal  companies  operating  coal  mines  located  in  West 
Virginia  on  the  Monongah  Division  of  the  Baltimore  and  Ohio 
Railroad.  Along  with  these  there  were  also  made  defendants 
two  other  corporations,  the  Consolidation  Coal  Company, 
located  on  the  Cumberland  and  Pennsylvania  Railroad  in 
Maryland,  and  the  Somerset  Coal  Company,  located  on  the 
Baltimore  and  Ohio  Railroad  in  Pennsylvania.  All  of  these 
coal  companies  were  charged  to  be  substantially  one  in  in- 
terest and  were  generally  described  as  the  Fairmont  Com- 
panies. In  addition,  thirty-one  other  coal  companies,  alleged 
to  be  independent  companies,  operating  coal  mines  on  the  line 
of  the  Baltimore  and  Ohio  Railroad,  were  also  made  defend- 
ants. Rearranging  somewhat  the  order  of  the  averments  as 
contained  in  the  bill,  the  prayer  for  relief  was  substantially 
based  upon  the  following  grounds:  The  Pitcaim  Coal  Com- 
pany, it  was  averred,  was  entitled  to  an  equal  distribution  of 
the  coal  cars  of  the  Baltimore  and  Ohio  Railroad  in  times  of 
shortag(»,  in  order  to  move  its  output  of  coal  in  interstate  com- 
merce, that  the  railroad  company  had  refused,  after  demand, 
to  give  it  the  share  of  cars  to  which  it  was  entitled,  and  that 
its  not  doing  so  had  been  seriously  prejudicial  to  the  business 
of  the  company,  had  curtailed  its  production  and  interfered 
with  the  moving  of  the  coal  produced  in  interstate  conmierce, 
and  that  the  conduct  of  the  railroad  in  the  premises  had 
amounted  to  the  giving  of  an  undue  preference  to  the  Fair- 
mont Coal  Company  and  its  affiliated  companies,  to  the  prej- 
udice of  the  Pitcaim  Company  and  all  other  independent 
companies.  The  method  pursued  by  the  Baltimore  and  Ohio 
Railroad  for  rating  mines,  by  the  consideration  of  both  capacity 
and  previous  shipments,  was  alleged,  and  it  was  charged  that, 
on  the  basis  of  capacity  of  the  mine  as  rated  by  that  system, 
the  Pitcaim  Company  was  entitled  to  seven-tenths  per  cent 


SALT.  &  OHIO  R.  R.  v.  PITCAIRN  COAL  CO.    487 
215  U.  S.  Opinion  of  the  Ck)urt. 

of  the  cars  for  distribution  in  the  Monongah  Division.  Gen- 
eral avennents  were,  however,  made  concerning  the  method  of 
rating,  which,  in  effect,  charged  that  such  method  was  dis- 
criminatory and  preferential,  and  was  put  in  force  so  as  to 
operate  in  favor  of  the  Fairmont  Coal  Company  and  the  com- 
panies affiliated  with  it,  to  the  prejudice  of  the  Pitcaim  Com- 
pany and  other  independent  coal  operators,  the  Baltimore  and 
Ohio  Railroad  being  interested,  it  was  charged,  directly  or  in- 
directly, in  the  Fairmont  and  its  affiliated  companies.  The 
method  of  deduction  from  the  mass  of  cars  for  the  benefit  of 
the  Cumberland  and  Pennsylvania  Railroad  was  also  charged 
to  be  discriminatory  and  preferential,  and  to  have  been  de- 
vised for  the  purpose  of  favoring  mines  on  the  line  of  the 
Cumberland  and  Pennsylvania,  which  were  affiliated  with  the 
Fairmont.  The  failure  to  charge  against  the  mines  which  had 
received  them,  individual  or  private  cars,  foreign  railroad  cars 
and  company  fuel  cars,  as  well  as  the  other  arbitrary  allot* 
ments  of  cars  provided  for  in  the  regulations  to  which  we  have 
referred,  including  the  Curtis  Bay  regulation,  were  all  assailed 
as  preferential  and  discriminatorj'^,  it  being  alleged  that  in 
many  instances  the  individual  cars  had  been  virtually  paid  for 
by  the  Baltimore  and  Ohio  Railroad,  and  that  the  failure 
to  charge  them  was  in  eflfect  a  mere  means  resorted  to  in  or- 
der to  give  a  preference  contrary  to  the  act  to  regulate  com- 
merce. The  prayer  was  for  an  alternative  writ  of  mandamus, 
commanding  an  equal  distribution  in  accordance  with  the 
averments  of  the  petition  in  effect  for  the  undoing  of  the  reg- 
ulations referred  to,  and  for  the  establishment  of  regulations 
conformable  to  the  rights  which  the  petition  asserted.  As  the 
scope  of  the  prayer  is  important  in  the  view  we  take  of  the 
case,  it  is  excerpted  in  the  margin.^ 

*  First.  That  in  the  event  of  scarcity  of  cars  to  be  furnished  by  de- 
fendant, Baltimore  and  Ohio  Railroad  Company,  to  shippers  of  coal 
on  the  Monongah  Division  of  said  road,  that  defendant,  the  Baltimore 
and  Ohio  Railroad  Company,  be  required  to  furnish  to  relator  one 
and  seven-tenths  (1.7)  per  cent  until  such  percentage  shall  properly 


488  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

It  suffices  for  the  present  purposes  to  say  that  the  answer 
of  the  Baltimore  and  Ohio  Railroad  traversed  every  averment 
as  to  preference  and  discrimination,  asserted  the  validity  of  the 
method  of  rating  and  the  rules  of  distribution  to  which  we 
have  referred.  In  great  detail  the  origin  and  history  of  the 
operation  of  private  or  individual  cars  was  set  out,  various 
contracts  on  that  subject  were  annexed  to  the  bill,  and  a  de- 
cree rendered  by  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  West  Virginia  in  favor  of  the  Fairmont 
Coal  Company,  perpetually  enjoining  the  Baltimore  and  Ohio 
Railroad  Company  to  deliver  certain  private  cars  to  the  Fair- 
be  increased,  of  the  total  number  of  cars  in  service,  or  supplied  to  all 
the  shippers  on  the  Monongah  Division  of  said  road,  without  deduct- 
ing from  said  number  of  cars  "Individual  Cars,"  or  any  arbitrary 
allotment  of  cars  to  other  shippers,  and  without  deducting  from  the 
total  number  of  cars  on  all  the  lines  of  the  Baltimore  and  Ohio  Rail- 
road the  "Individual  Cars"  claimed  by  the  Somerset  Coal  Company, 
or  the  cars  arbitrarily  assigned  to  the  Cumberland  and  Pennsylvania 
Railroad  Company,  or  the  Consolidation  Coal  Company,  before  mak- 
ing the  percentage  distribution  to  the  Monongah  Division. 

Second.  That  writ  of  mandamus  may  be  issued  against  the  said 
Baltimore  and  Ohio  Railroad  Company,  defendant,  to  command  and 
require  it  to  cease  to  make  or  give  any  undue  or  imreasonable  pref- 
erence or  advantage  to  Fairmont  Coal  Company,  Consolidation  Coal 
Company,  Cumberland  and  Pennsylvania  Railroad  Company,  Som- 
erset Coal  Company,  Southern  Coal  and  Transportation  Company, 
Clarksburg  Fuel  Company,  or  Pittsburg  and  Fairmont  Fuel  Company, 
or  either  of  them,  in  the  shipping  and  transportation  of  their  coal, 
and  to  cease  from  subjecting  the  relator,  Rtcaim  Coal  Company, 
or  any  other  independent  shipper  of  coal  on  the  Monongah  Division 
aforesaid,  to  any  undue  or  unreasonable  prejudice  or  disadvantage  in 
the  shipping  and  transportation  of  coal,  or  in  any  respect  whatsoever 
and  to  move  and  transport  the  traffic  of  relator,  Pitcairn  Coal  Com- 
pany, and  the  other  independent  coal  companies  on  the  Monongah 
Division  aforesaid,  without  discrimination  or  preference,  and  to  fur- 
nish the  said  Pitoaim  Coal  Company,  and  the  other  independent  ship- 
pers of  coal  on  the  Monongah  Division,  without  preference  or  dis- 
crimination, and  upon  conditions  as  favorable  to  it  or  them  as  is  given 
by  the  said  railroad  company  to  the  said  Fairmont  Coal  Company, 
Consolidation  Coal  Company,  Somerset  Coal  Company,  Clarksbuig 


BALT.  &  OHIO  R.  R.  v,  PITCAIRN  COAL  CO.    489 
215  U.  S.  Opinion  of  the  Court. 

mont  Company,  was  referred  to  and  made  part  of  the  bill. 
The  Cumberland 'and  Pennsylvania  Railroad  Company,  the 
Fairmont  Coal  Company  and  the  five  coal  companies  alleged 
in  the  bill  to  be  affiliated  with  the  Fairmont  Coal  Company 
applied  for  leave  to  answer,  on  the  ground  that,  although  the 
alternative  rule  for  mandamus  had  not  been  served  upon  them, 
and  they  had  only  been  summoned  to  *'do  whatever  they 
deemed  proper  to  protect  their  interest  in  the  premises,"  they 
desired  to  answer,  because  the  questions  involved  "are  ex- 
tremely important  and  of  unusual  interest,  not  only  to  your 
petitioners  and  the  railroad  against  whom  the  mandamus  is 

Fuel  Company,  Southern  Coal  and  Transportation  Company,  and 
Pittsburg  and  Fairmont  Fuel  Company,  or  for  like  traffic,  under  sim- 
ilar conditions,  to  any  other  shipper,  its  fair  and  reasonable  percen- 
tage of  all  cars  on  the  line  of  said  railroad  and  to  shippers  of  like  traffic 
along  its  railroad  line,  based  upon  the  system  of  distribution  of  cars 
in  effect  on  said  railroad  as  aforesaid,  or  upon  any  fair,  reasonable  and 
equitable  basis,  and  to  furnish  to  the  said  Pitcaim  Coal  Company,  for 
the  transportation  of  its  coal,  without  discrimination,  exception  or 
limitation,  and'  upon  conditions  as  favorable  as  those  given  to  other 
shippers,  the  percentage  of  the  total  car  supply  on  said  railroad  at 
this  time  properly  distributable  by  said  railroad  company  to  the  said 
Monongah  Division,  and  thereon  distributed  among  the  relator  and 
the  other  shippers  of  coal  thereon  as  aforesaid. 

Third.  That  in  ascertaining  and  fixing  the  number  of  cars  to  which 
relator,  Pitcaim  Coal  Company,  and  the  other  coal  companies  on  the 
Monongah  Division  aforesaid  are  entitled,  the  said  Baltimore  and  Ohio 
Railroad  Company  shall  take  into  consideration  and  include  in  the 
estimate  or  calculation  of  the  number  of  cars,  to  be  divided  in  the  pro- 
portion to  which  the  percentages  of  each  mine  entitles  the  owner  thereof 
to  cars,  all  cars,  whether  owned  by  individual  operators,  shippers, 
other  railroad  companies  or  by  the  Baltimore  and  Ohio  Railroad  Com- 
pany, and  which  may  be  upon  the  road  of  said  Baltimore  and  Ohio 
Railroad  Company,  and  shall  also  take  into  consideration,  and  include 
in  the  estimate  or  calculation  of  the  number  of  cars  to  be  divided  upon 
the  percentages  aforesaid,  all  cars,  whether  furnished  or  used  by  for 
fuel  or  supply  coal  for  the  Baltimore  and  Ohio  Railroad  Company, 
or  for  any  other  railroad  company,  and  shall  not  deduct,  before  di- 
viding the  cars  upon  the  percentages  aforesaid,  any  cars  for  premiums 
at  Curtis  Bay,  or  other  arbitrary  allotments. 


490  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

asked,  but  to  the  whole  body  of  transportation  comi>anies  en- 
gaged in  interstate  commerce,  and  that  the  importance  of  the 
questions  involved  is  so  great  that  your  petitioners  feel  that 
they  are  making  but  a  reasonable  request  when  they  ask  for  a 
reasonable  time  to  thoroughly  present  the  facts  which  the 
court  ought  to  be  in  possession  of  for  a  full  and  complete  de- 
termination of  the  question."  The  right  to  answer  having 
been  given,  and  delay  for  that  purpose  having  been  accorded, 
these  companies  answered.  Without  at  all  going  into  detail, 
we  think  it  suffices  to  say  that  the  answer  traversed  all  the 
averments  as  to  preference  and  discrimination  alleged  in  the 
bill.  It  specially  asserted  the  legality  of  the  operation  on  the 
Baltimore  and  Ohio  Railroad  of  private  or  individual  cars; 
made  copious  reference  to  the  acts  or  contracts  from  which 
the  right  to  operate  said  cars  had  arisen;  charged  that  to  take 
said  cars  from  the  service  of  the  persons  who  owned  them 
would  be  confiscatory,  and  in  substance  asserted  the  validity 
of  the  system  of  rating  and  of  distribution  enforced  by  the 
regulations  of  the  company  which  we  have  previously  re- 
ferred to.  Fourteen  out  of  the  thirty-one  corporations  re- 
ferred to  in  the  petition  as  independent  companies  briefly 
answered,  adopting  the  averments  of  the  petition,  and  prajdng 
for  the  awarding  of  the  relief  therein  asked.  Sixteen  did  not 
answer,  and  one  of  said  companies  substantially  joined  in  the 
defenses  of  the  railroad  company,  except  as  to  the  individual 
cars,  concerning  which  it  averred  that  it  was  the  duty  of  the 
railroad  to  purchase  said  cars  from  the  persons  owning  them 
and  to  operate  them  as  part  of  the  railroad  equipment.  By 
stipulation  the  cause  was  heard  by  the  court  without  a  jury. 

There  was  voluminous  testimony  And  a  protracted  trial, 
each  side  requesting  findings  and  instructions  embodying  their 
respective  contentions  and  excepting  in  so  far  as  they  were 
overruled.  The  court  considered  all  the  contentions  raised  by 
the  pleadings  except  several  which  were  not  pressed  at  bar. 
It  held  that  in  view  of  the  relations  which  the  Cumberland  and 
Pennsylvania  Railroad  had  to  the  Baltimore  and  Ohio  and 


SALT.  &  OHIO  R.  R.  v.  PITCAIRN  COAL  CO.    491 
215  U.  S.  Opinion  of  the  Court. 


• 


the  origin  of  those  relations  the  method  by  which  coal  cars 
were  turned  over  to  the  Cumberland  road  was  not  preferential 
or  discriminatory.  It  decided  that  however  amenable,  ab- 
stractly considered,  to  criticism,  if  at  all,  might  be  the  system 
of  rating,  and  especially  the  inclusion  therein  of  the  amount 
of  coal  shipments,  and  the  large  influence  attributed  to  that 
fact,  yet,  when  the  particular  facts  concerning  the  Monongah 
district  and  the  relations  of  the  Baltimore  and  Ohio  to  that 
district  were  given  their  proper  weight,  the  system  was  a  just 
one  and  ought  not  to  be  interfered  with.  The  complaint  as  to 
the  Curtis  Bay  premium  was  also  decided  to  be  without  merit; 
and  so  also  was  the  complaint  as  to  consumer's  cars,  as  to 
foreign  railway  fuel  cars  and  company  fuel  cars.  Considering 
the  private  cars  belonging  to  mine  operators,  and,  without  at 
all  going  into  the  relation  of  the  Baltimore  and  Ohio  Railroad 
with  the  owners  of  such  cars,  it  was  decided  that  while  there 
was  a  right  on  the  part  of  the  railroad  to  move  the  cars,  and  it 
would  be  confiscation  to  deprive  the  owners  of  the  right  to  use 
them,  yet  the  duty  was  on  the  railroad  to  take  account  of  the 
cars  in  fixing  the  percentage  in  case  of  shortage.  The  court 
declined  to  consider  the  decree  which  had  been  rendered  in 
favor  of  the  Fairmont  Company  against  the  Baltimore  and 
Ohio  in  the  previous  case,  which  was  pleaded,  as  well  as  that 
in  another  cause  which  was  relied  upon  in  argument  to  the 
same  effect  as  controlling.  The  mandamus  prayed  therefore 
was  refused  as  to  every  item  embraced  in  the  petition  but  that 
particular  item,  and,  as  to  it,  the  writ  was  awarded.  United 
States  V.  Bait,  &  Ohio  R.  R,,  154  Fed.  Rep.  108. 

The  Baltimore  and  Ohio  Railroad  Company,  the  Fairmont 
Companies  and  the  Pitcaim  Coal  Company  prosecuted  error. 
The  Circuit  Court  of  Appeals  held  as  follows:  a,  that  the  sys- 
tem of  rating,  so  far  as  taking  into  view  the  shipments  and 
percentages  based  thereon  was  considered,  was  discriminatory 
and  preferential;  6,  that  while  the  right  to  allot  cars  to  the 
Cumberland  and  Pennsylvania  Railroad  under  the  facts 
found  below  was  lawful,  the  methods  by  which  the  allotment 


492  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

was  made  was  also  discriminatory  and  preferential ;  c,  that  the 
practice  as  to  the  Curtis  Bay  regulation  was  also  amenable  to 
the  same  criticism;  d,  that  the  duty  existed  to  take  into  ac- 
count the  individual  cars,  the  foreign  railway  fuel  cars  and  the 
company  fuel  cars  in  making  a  pro  rata  division  in  case  of  car 
shortage,  and  that  not  to  do  so  would  give  rise  to  undue 
preferences  and  unlawful  discriminations  forbidden  by  the  act 
to  regulate  commerce.  Concluding  that  the  various  subjects 
embraced  in  the  complaint  with  which  it  thus  dealt  were  all 
controlled  by  the  act  to  regulate  commerce,  it  was  expressly 
decided  that  the  right  to  rectify  the  wrongs  by  the  issue  of  the 
writ  of  mandamus  as  prayed  for  was  sanctioned  by  the  twenty- 
third  section  of  the  act  to  regulate  commerce,  and  the  case 
was  remanded  to  the  court  below,  with  directions  to  allow  the 
writ  of  peremptory  mandamus,  in  accordance  with  the  opinion. 
United  States  v.  Bdt.  &  Ohio  R.  Co,,  165  Fed.  Rep.  113.  The 
case  is  here  upon  error  prosecuted  by  the  Baltimore  and  Ohio 
Railroad  and  the  Fairmont  Coal  Companies. 

One  of  the  assignments  of  error  assails  the  correctness  of  the 
conclusion  of  the  court  below  to  the  effect  that,  compatibly 
with  the  act  to  regulate  commerce,  there  was  power  under  the 
circumstances  disclosed  by  the  record  to  consider  the  subject- 
matters  which  were  complained  of,  and  to  award  the  relief 
concerning  them  which  was  prayed.  Indeed,  the  nature  of  the 
controversy  and  the  relief  which  it  requires  is  such  that,  even 
without  the  assigned  error,  to  which  we  have  referred,  the 
question  at  the  very  threshold  necessarily  arises  and  com- 
mands our  attention  as  to  whether  there  was  power  in  the 
courts,  under  the  circumstances  disclosed  by  the  record,  to 
grant  the  relief  prayed  consistently  with  the  provisions  of  the 
act  to  regulate  commerce,  and  to  that  subject  we  therefore  at 
once  come. 

To  a  consideration  of  this  question  it  is  essential  to  at  once 
summarily  and  accurately  fix  the  subject-matter  of  the  al- 
leged grievances  and  the  precise  character  of  the  relief  re- 
quired in  order  to  remedy  the  evils  complained  of  upon  the 


BALT.  &  OHIO  R.  R.  v.  PITCAIRN  COAL  CO.    493 
215  U.  S.  Opinion  of  the  Court. 

sumption  of  their  existence.  As  to  the  first,  it  is  patent  that 
the  grievances  involve  acts  of  the  Baltimore  and  Ohio  Rail- 
road, regulations  adopted  by  that  company  and  alleged  deal- 
ings by  the  other  corporations,  all  of  which,  it  is  asserted,  con- 
cern interstate  commerce,  and  aU  of  which,  it  is  alleged,  are  in 
direct  violation  of  the  duty  imposed  upon  the  railroad  com- 
pany by  the  provisions  of  the  act  to  regulate  commerce.  As 
to  the  second,  in  view  of  the  nature  and  character  of  the  acts 
assailed,  of  the  prayer  for  relief  which  we  have  previously  ex- 
cerpted and  of  the  relief  which  the  court  below  directed  to  be 
awarded,  it  is  equally  clear  that  a  prohibition,  by  way  of 
mandamus,  against  the  act  is  sought  and  an  order,  by  way  of 
mandamus,  was  invoked,  and  was  allowed  which  must  oper- 
ate, by  judicial  decree,  upon  all  the  numerous  parties  and 
various  interests  as  a  rule  or  regulation  as  to  the  matters  com- 
plained of  for  the  conduct  of  interstate  commerce  in  the  future. 
When  the  situation  is  thus  defined  we  see  no  escape  from  the 
conclusion  that  the  grievances  complained  of  were  primarily 
within  the  administrative  competency  of  the  Interstate  Com- 
merce Commission  and  not  subject  to  be  judicially  enforced, 
at  least  until  that  body,  clothed  by  the  statute  with  au- 
thority on  the  subject,  had  been  afforded  by  a  complaint  made 
to  it  the  opportunity  to  exert  its  administrative  functions. 

The  controversy  is  controlled  by  the  considerations  which 
governed  the  ruling  made  in  Texas  &  Pacific  Ry,  Company  v. 
Abilene  Cotton  OH  Co.,  204  U.  S.  426.  In  that  case  suit  was 
brought  in  a  court  of  the  State  of  Texas  to  recover,  because 
of  an  exaction  by  a  carrier,  on  an  interstate  shipment,  of  an 
alleged  unreasonable  rate,  although  the  rate  charged  was  that 
stated  in  the  schedules  duly  filed  and  published  in  accordance 
with  the  act  to  regulate  commerce.  After  great  consideration, 
it  was  held  that  the  relief  prayed  was  inconsistent  with  the  act 
to  regulate  commerce,  since  by  that  act  the  rates,  as  filed,  were 
controlling  until  they  had  been  declared  to  be  unreasonable  by 
the  Interstate  Commerce  Commission  on  a  complaint  made  to 
that  body.    It  was  pointed  out  that  any  other  view  would  give 


494  OCTOBER  TERM,  1909. 

Opinioii  of  the  Court.  215  U.  S. 

rise  to  inextricable  confusion,  would  create  unjust  preferences 
and  undue  discriminations,  would  frustrate  the  purposes  of  the 
act,  and,  in  effect,  cause  the  act  to  destroy  itself.  The  ruling 
there  made  dealt  with  the  provisions  of  the  act  as  they  existed 
prior  to  the  amendments  adopted  in  1906,  and  when  those 
amendments  are  considered  they  render,  if  possible,  more 
imperative  the  construction  given  to  the  act  by  that  ruling, 
since,  by  §  15,  as  enacted  by  the  amendment  of  June  29, 1906, 
the  commission  is  empowered,  indeed  it  is  made  its  duty,  in 
disposing  of  a  complaint,  not  only  to  determine  the  legality  of 
the  practice  alleged  to  give  rise  to  an  unjust  preference  or  un- 
due discrimination,  and  to  forbid  the  same,  but,  moreover, 
to  direct  the  practice  to  be  followed  as  to  such  subject  for  a 
future  period,  not  exceeding  two  years,  with  power  in  the 
commission,  if  it  finds  reason  to  do  so,  to  suspend,  modify,  or 
set  aside  the  same,  the  order,  however,  to  become  operative 
without  judicial  action.  In  considering  §  15  in  the  case  of 
Interstate  Commerce  Commission  v.  Illinois  Central  Railroad 
Co.,  just  decided,  ante,  p.  452,  it  was  pointed  out  that  the  effect 
of  the  section  was  to  cause  it  to  come  to  pass  that  courts,  in 
determining  whether  an  order  of  the  commission  should  be 
suspended  or  enjoined,  were  without  power  to  invade  the  ad- 
ministrative functions  vested  in  the  commission,  and  there- 
fore could  not  set  aside  an  order  duly  made  on  a  mere  exercise 
of  judgment  as  to  its  wisdom  or  expediency.  Under  these  cir- 
cumstances it  is  apparent,  as  we  have  said,  that  these  amend- 
ments add  to  the  cogency  of  the  reasoning  which  led  to  the 
conclusion  in  the  Abilene  ca^e,  that  the  primary  interference  of 
the  courts  with  the  administrative  functions  of  the  commis- 
sion was  wholly  incompatible  with  the  act  to  regulate  com- 
merce. This  result  is  easily  illustrated.  A  particular  regula- 
tion of  a  carrier  engaged  in  interstate  conmierce  is  assailed  in 
the  courts  as  unjustly  preferential  and  discriminatory.  Upon 
the  facts  found  the  complaint  is  declared  to  be  well  founded. 
The  administrative  powers  of  the  commission  are  invoked  con- 
cerning a  regulation  of  like  character  upon  a  similar  com- 


BALT.  &  OHIO  R.  R.  v,  PITCAIRN  COAL  CO.    495 

215  U.  S.  Opinion  of  the  Court. 

plaint.  The  commission  finds,  from  the  evidence  before  it, 
that  the  regulation  is  not  unjustly  discriminatory.  Which 
would  prevail?  If  both,  then  discrimination  and  preference 
would  result  from  the  very  prevalence  of  the  two  methods  of 
procedure.  If,  on  the  contrary,  the  commission  was  bound  to 
follow  the  previous  action  of  the  courts,  then  it  is  apparent  that 
its  power  to  perform  its  administrative  functions  would  be 
curtailed,  if  not  destroyed.  On  the  other  hand,  if  the  action 
of  the  commission  was  to  prevail,  then  the  function  exercised 
by  the  court  would  not  have  been  judicial  in  character,  since 
its  final  conclusion  would  be  susceptible  of  being  set  aside  by 
the  action  of  a  mere  administrative  body.  That  these  illus- 
trations are  not  imaginary  is  established  not  only  by  this 
record  but  by  the  record  in  the  case  of  the  The  Interstate 
Commerce  Commission  v.  Illinois  Central  Railroad  Company, 
ante,  p.  452. 

We  say  this  record,  because,  as  has  been  pointed  out,  one  of 
the  questions  which  we  would  be  called  upon  to  decide  if  the 
merits  were  open  is  whether  the  court  below  was  right  in  hold- 
ing that  if  anything  but  the  physical  capacity  of  a  mine  was 
taken  into  consideration  by  a  railroad  company  in  rating  the 
mine  for  car  distribution  in  time  of  car  shortage,  the  act  to 
regulate  commerce  would  be  violated,  and  therefore  the  sys- 
tem adopted  by  the  Baltimore  and  Ohio  Railroad  Company 
was  repugnant  to  the  act,  because  it  made  not  alone  the 
physical  capacity  but  past  shipments  factors  to  be  considered. 
But  the  reports  of  the  Interstate  Commerce  Commission  show 
that  on  a  complaint  made  to  that  body  on  the  subject  of  the 
system  of  mine  rating  of  the  Baltimore  and  Ohio  Railroad 
Company,  the  commission,  before  the  decision  of  the  Circuit 
Court  of  Appeals  in  this  case  was  announced,  had  expressly 
refused  to  hold  that  the  system  was  either  preferential  or 
prejudicial  within  the  act  to  regulate  commerce.  In  that  re- 
port, speaking  of  the  Baltimore  and  Ohio  system  of  mine 
rating,  it  was  said  (Rail  &  River  Coal  Co.  v.  B,  &  0.  R.  R,  Co., 
14  I.  C.  C.  Rep.  94) : 


496  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

"This  method  of  rating  mines  was  adopted  by  the  defend- 
ant in  1902,  after  a  careful  examination  of  the  various  systems 
in  force  on  other  lines.  It  was  intended  as  a  compromise  be- 
tween ratings  based  on  physical  capacity  only  and  ratings 
based  on  commercial  capacity  only." 

And  after  elaborately  weighing  the  matter,  it  was  said 
(p.  95):  "In  combining  the  two  systems  the  defendant  has 
adopted  a  middle  ground,  apparently  upon  the  thought  that 
neither  the  physical  nor  the  commercial  capacity  is  always 
a  fair  test.  We  are  not  prepared,  on  this  record,  to  say  that 
there  is  no  force  in  that  view,  and  that  a  system  of  mine 
rating  based  upon  a  combination  of  the  physical  and  com- 
mercial capacities  of  the  several  mines  does  not  more  closely 
approximate  the  actual  car  requirements  of  the  mines  than 
a  system  based  upon  physical  capacity  only." 

We  say  also  the  Illinois  Central  case,  since  it  is  shown  in 
that  case  that  when  the  railroad  company  changed  its  regu- 
lations, presumably  to  have  them  conform  to  the  adminis- 
trative ruling  made  by  the  commission  in  the  Hocking  VaUey 
case,  such  change  was  prevented  from  going  into  effect  by 
an  injunction  issued  by  the  Circuit  Court  of  the  United  States 
for  the  Northern  District  of  Illinois  in  the  Majestic  Coal  Com- 
pany case.  And  when  the  commission  came  to  dischai^e  its 
duty  upon  the  complaint  made  to  it  in  the  Illinois  Central 
case  it  was  put  to  the  alternative  of  either  abdicating  its  ad- 
ministrative duties  or  making  an  order  in  violation  of  the 
injunction. 

And  the  destructive  effect  upon  the  system  of  regulation 
devised  by  the  act  to  regulate  commerce,  which  these  illus- 
trations show  must  be  the  result  of  construing  that  act  as 
giving  authority  to  the  courts,  without  the  preliminary  ac- 
tion of  the  commission,  to  consider  and  pass  upon  the  admin- 
istrative questions  which  the  statute  has  primarily  confided 
to  that  body,  may  be  greatly  multiplied.  This  is  shown  by 
the  opinion  of  the  commission  in  the  Baltimore  and  Ohio  case, 
to  which  we  have  already  referred,  where  the  decisions  of 


BALT.  &  OHIO  R.  R.  v.  PITCAIRN  COAL  CO.    497 
215  U.  S.  Opinion  of  the  Court. 

other  lower  courts  are  referred  to  in  conflict  with  the  opinion 
of  the  court  below  in  this  case  as  to  mine  rating,  and  not  in 
harmony  with  the  views  expressed  by  the  commission  in  the 
Baltimore  and  Ohio  case. 

The  court  below  deemed  that  it  was  its  duty  to  award  to 
the  coal  company  the  relief  by  mandamus  which  was  prayed, 
upon  the  theory  that  §  23  of  the  act  to  regulate  commerce 
rendered  it  imperative  to  do  so,  this  conclusion  being  specially 
based  upon  the  provision  of  that  section  authorizing  the 
remedy  of  mandamus  to  compel  carriers  "to  furnish  cars  or 
other  facilities  for  transportation  for  the  party  applying  for 
the  writ." 

The  section  in  question  is  as  follows  (§  10  of  Act  of  March  2, 
1889,  c.  382,  25  Stat.  855,  862) : 

*'Sec.  23.  That  the  Circuit  and  District  Courts  of  the 
United  States  shall  have  jurisdiction  upon  the  relation  of  any 
person  or  persons,  firm,  or  corporation,  alleging  such  violation 
by  a  common  carrier,  of  any  of  the  provisions  of  the  act  of 
which  this  is  a  supplement  and  all  acts  amendatory  thereof 
as  prevents  the  relator  from  having  interstate  traffic  moved 
by  said  common  carrier  at  the  same  rates  as  are  charged,  or 
upon  terms  or  conditions  as  favorable  as  those  given  by  said 
common  carrier  for  like  traffic  under  similar  conditions  to  any 
other  shipper,  to  issue  a  writ  or  writs  of  mandamus  against 
said  common  carrier,  commanding  such  common  carrier  to 
move  and  transport  the  traffic,  or  to  furnish  cars  or  other 
facilities  for  transportation  for  the  party  applying  for  the 
writ;  Provided  J  That  if  any  question  of  fact  as  to  the  proper 
compensation  to  the  common  carrier  for  the  service  to  be  en- 
forced by  the  writ  is  raised  by  the  pleadings,  the  writ  of  per- 
emptory mandamus  may  issue,  notwithstanding  such  ques- 
tion of  fact  is  undetermined,  upon  such  terms  as  to  secu- 
rity, payment  of  money  into  the  court,  or  otherwise,  as  the 
court  may  think  proper,  pending  the  determination  of  the 
question  of  fact:  Provided,  That  the  remedy  hereby  given  by 
writ  of  mandamus  shall  be  cumulative,  and  shall  not  be  held 
VOL.  ccxv — 32 


498  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

to  exclude  or  interfere  with  other  remedies  provided  by  this 
act  or  the  act  to  which  it  is  a  supplement/' 

That  it  is  not  necessary  to  point  out  that  there  is  ample 
scope  for  giving  effect  to  and  applying  the  remedy  embraced 
in  §  23,  if  that  section  be  construed  in  harmony  with  the  act 
of  which  it  forms  a  part,  and  not  as  destructive  of  one  of  the 
main  purposes  of  the  act,  is,  we  think,  obvious.  It  is  to  be 
observed  that  the  section,  besides  empowering  the  use  of  the 
writ  of  mandamus  to  compel  the  furnishing  of  cars  and  other 
facilities  for  transportation,  also  authorizes  the  use  of  that 
writ  for  the  purpose  of  compelling  the  movement  of  traffic 
"at  the  same  rates  as  are  charged,  or  upon  terms  or  conditions 
as  favorable  as  those  given  by  said  common  carrier  for  like 
traffic  under  similar  conditions  to  any  other  shipper."  As  it 
was  settled  in  the  Abilene  case  that  the  right  to  question  in 
the  courts  the  rates  established  in  accordance  with  the  act 
to  regulate  commerce  without  previous  resort,  by  complaint, 
to  the  commission,  in  order  to  determine  their  unreasonable- 
ness, would  be  destructive  of  the  act,  and  therefore  was  not 
permissible,  that  ruling  is  equally  applicable  to  the  provision 
as  to  furnishing  cars  contained  in  §  23,  which  is  here  relied 
upon.  But  as  we  are  required,  for  the  determination  of  the 
case  now  before  us,  to  consider  the  scope  of  the  act  to  regulate 
commerce  as  now  existing,  as  a  result  of  the  amendments  of 
1906,  we  shall  not  rest  our  conclusion  alone  upon  the  per- 
suasive force  of  the  reasoning  which  constrained  to  the  con- 
clusion announced  in  the  Abilene  case.  Speaking  generally, 
it  is  true  to  say  that,  prior  to  1889,  although  the  prohibitions 
of  the  act  to  regulate  commerce  as  to  preferences  and  dis- 
criminations were  far  reaching,  the  mechanism  provided  by 
the  statute  for  the  enforcement  of  orders  of  the  commission 
on  the  subject,  as  well  as  those  concerning  a  finding  as  to  un- 
reasonable rates,  were  deemed  to  be  in  many  respects  inef- 
fective, or  at  least  tardy  in  operation  or  unsatisfactory  in 
prompt  remedial  results,  and  this  because  immediate  effect 
was  not  given  to  the  orders  of  the  commission,  but  the  fidd 


SALT.  &  OHIO  R.  R.  v.  PITCAIRN  COAL  CO;   499 
215  U.  S.  Opinion  of  the  Court. 

of  judicial  authority  was  required  as  a  prerequisite  for  such 
result.  Section  23,  here  relied  upon,  was  not  part  of  the 
original  act,  but,  as  we  have  said,  was  added  thereto  on 
March  2,  1889,  for  the  obvious  purpose  of  making  the  reme- 
dial processes  of  the  act  more  speedy  and  efficacious.  Now, 
it  cannot  in  reason  be  questioned  that  among  the  purposes 
contemplated  by  the  amendments  adopted  in  1906  was  the 
curing  of  the  presiuned  remedial  inefficiency  of  the  act  by 
supplying  efficient  means  for  giving  effect  to  the  orders  of 
the  commission,  made  in  the  exertion  of  the  authority  con- 
ferred upon  that  body.  To  that  end  one  of  the  amendments, 
§  15,  gives  operative  effect  to  the  orders  of  the  commission 
without  the  sanction  of  previous  judicial  authority,  and  en- 
dows that  body  with  the  power,  not  only  as  to  unreasonable 
rates,  but  as  to  practices  found  upon  complaint  to  be  unduly 
prejudicial  and  unjustly  discriminatory,  to  correct  the  same 
by  its  order,  which  order  should  have  effect  within  the  period 
fixed  in  the  statute,  and,  to  enforce  these  provisions,  penal- 
ties and  forfeitures  are  provided.  Sec.  16.  It  being  demon- 
strable, as  we  have  seen,  that  to  give  to  §  23  the  broad  mean- 
ing which  the  court  below  affixed  to  it  would  be  to  destroy 
or  render  inefficacious  the  remedial  purposes  of  the  amend- 
ments enacted  in  1906,  it  must  follow  that  such  construction 
cannot  be  adopted,  since  to  do  so  would  compel  us  to  hold 
that  the  wide  and  far-reaching  remedies  created  by  the  amend- 
ments of  1906  were,  in  effect,  destroyed  by  the  narrower 
remedial  processes  which  had  been  previously  enacted  in 
1889.  This  conclusion  being  in  reason  impossible,  it  must 
foUow  that,  construing  the  provisions  of  §  23  in  the  Ught  of 
and  in  harmony  with  the  amendments  adopted  in  1906,  the 
remedy  afforded  by  that  section,  in  the  cases  which  it  em- 
braces, must  be  limited  either  to  the  performance  of  duties 
which  are  so  plain  and  so  independent  of  previous  adminis- 
trative action  of  the  commission  as  not  to  require  a  prereq- 
uisite exertion  of  power  by  that  body,  or  to  compelling  the 
performance  of  duties  which  plainly  arise  from  the  obliga- 


500  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

tory  force  which  the  statute  attaches  to  orders  of  the  com- 
mission, rendered  within  the  lawful  scope  of  its  authority, 
until  such  orders  are  set  aside  by  the  commission  or  enjoined 
by  the  courts. 

Nor  is  there  anything  in  the  contention  that  the  decision 
in  Southern  Ry,  Co,  v.  Tift,  206  U.  S.  428,  qualifies  the  ruling 
in  the  Abilene  case,  and  is  an  authority  supporting  the  right 
to  resort  to  the  courts  in  advance  of  action  by  the  conmii^- 
sion  for  relief  against  unreasonable  rates  or  unjust  discrimi- 
natory practices,  which,  from  their  nature,  primarily  require 
action  by  the  commission.  While  it  is  true  that  the  original 
bill  in  the  Tift  case  sought  relief  from  alleged  unreasonable 
rates  before  action  by  the  commission,  yet,  as  said  by  this 
court  (p.  437) : 

"The  Circuit  Court  granted  no  relief  prejudicial  to  appel- 
lants on  the  original  bill.  It  sent  the  parties  to  the  Interstate 
Commerce  Commission,  where,  upon  sufficient  pleadings,  iden- 
tical with  those  before  the  court,  and  upon  testimony  ad- 
duced upon  the  issues  made,  the  decision  was  adverse  to  the 
appellants.  This  action  of  the  commission,  with  its  findings 
and  conclusions,  was  presented  to  the  Circuit  Court,  and  it 
was  upon  these,  in  effect,  the  decree  of  the  court  was  ren- 
dered. There  was  no  demurrer  to  that  petition,  and  the  tes- 
timony taken  before  the  commission  was  stipulated  into  the 
case,  and  the  opinion  of  the  court  recites  that,  'with  equal 
meritorious  purpose,  counsel  for  respective  parties  agreed  that 
this  would  stand  for  and  be  the  hearing  for  final  decree  in 
equity.' '' 

The  judgment  of  the  Circuit  Court  of  Appeals  is  reversed, 
and  the  cause  is  remanded  to  the  Circuit  Court  with  direc- 
tions to  set  aside  its  judgment,  and  enter  judgment  dismissing 
the  petition. 

Reoersed. 

Mr.  Justice  Harlan  and  Mr.  Justice  Brewer  dissent. 


MACON  GROCERY  CO.  v.  ATLANTIC  COAST  LINE.  501 
215  U.  S.  Counsel  for  Parties. 


MACON  GROCERY  COMPANY  v.   ATLANTIC   COAST 

LINE  RAILROAD  COMPANY. 

APPEAL  FROM  THE  CIRCUIT  COURT  OF  APPEALS  FOR  THE 

FIFTH  CIRCUIT. 

No.  351.    Argued  October  20,  21,  1909.— Decided  January  17,  1910. 

A  suit  brought  by  shippers  to  enjoin  a  railroad  company  from  putting 
a  tariff  schedule  into  effect  on  the  ground  that  it  violates  rights  se- 
cured by  the  act  to  regulate  commerce  is  a  case  arising  under  the 
Constitution  and  laws  of  the  United  States,  and  the  jurisdiction  of 
the  Circuit  Court  over  the  person  of  the  defendant  must  be  deter- 
mined accordingly. 

Under  the  jurisdictional  act  of  March  3,  1875,  c.  137,  18  Stat.  470,  as 
amended  by  the  act  of  March  3,  1887,  c.  373,  24  Stat.  552,  corrected 
by  the  act  of  August  13, 1888,  c.  866, 25  Stat.  433,  the  Circuit  Court 
in  the  district  of  which  the  defendant  is  not  an  inhabitant  has  not 
jurisdiction  of  a  case  arising  under  the  Constitution  and  laws  of  the 
United  States,  even  though  diverse  citizenship  exist,  the  plaintiff 
resides  in  the  district,  and  the  cause  be  one  alone  cognizable  in  a 
Federal  court. 

Where  pleas  to  the  jurisdiction  which  should  have  been  sustained  on  one 
ground  were  overruled  but  subsequently  the  Circuit  Court  of  Ap- 
peals reversed  and  remanded  with  instructions  to  dismiss  without 
prejudice  for  want  of  jurisdiction  on  a  different  ground,  this  court 
may  reach  the  result  which  should  have  been  originally  arrived  at  by 
affirming  the  decree  of  the  Circuit  Court  of  Appeals  without  express- 
ing any  opinion  as  to  the  merits  of  the  reasoning  on  which  it  was 
based. 

166  Fed.  Rep.  206,  affirmed. 

The  facts,  which  involve  the  jurisdiction  of  the  Circuit 
Court,  are  stated  in  the  opinion. 

Mr.  William  A .  Wimbish  for  appellants. 

Mr,  Henry  L.  Stone  and  Mr.  Claudian  B.  Northrop  for  ap- 
pellees. 


502  OCTOBER  TERM,  1909 

Opinion  of  the  Court.  215  U.  8. 

Mr.  Justice  White  delivered  the  opinion  of  the  court. 

This  litigation  was  commenced  on  the  equity  side  of  the 
Circuit  Court  of  the  United  States  for  the  Southern  District 
of  Georgia,  by  the  filing  on  July  25,  1908,  of  a  bill  on  behalf 
of  the  present  appellants,  all  citizens  of  the  State  of  Georgia, 
who  are  wholesale  dealers  in  groceries  and  food  products 
and  like  commodities.  The  defendants  named  in  the  bill  are 
the  appellees  in  this  court,  railroad  corporations  of  States 
other  than  Georgia,  viz.,  the  Atlantic  Coast  Line  Railroad 
Company,  the  Louisville  and  Nashville  Railroad  Company, 
the  Nashville,  Chattanooga  and  St.  Louis  Railway  Company, 
the  Southern  Railway  Company,  and  the  Cincinnati,  New 
Orleans  and  Texas  Pacific  Railway  Company. 

Briefly  stated,  the  object  of  the  bill  was  to  restrain  the 
putting  into  effect,  by  the  interstate  carriers  just  named,  of 
proposed  advances  in  rates  on  fresh  meats,  grain  products, 
hay  and  packing-house  products  within  the  territory  of  what 
is  known  as  the  Southeastern  Freight  Association.  That 
territory,  roughly  described,  embraces  the  States  of  South 
Carolina,  Florida,  Georgia,  points  in  Tennessee,  and  that 
portion  of  Alabama  east  of  a  line  drawn  from  Chattanooga 
through  Birmingham,  Selma  and  Montgomery  to  Pensacola. 
It  was  averred  that  freight  tariffs,  embodying  the  proposed 
advances  in  rates,  had  been  filed  with  the  Interstate  Com- 
merce Commission,  that  notice  had  been  given  that  such 
tariffs  would  become  effective  on  August  1,  1908,  and  that 
practically  every  interested  hne  of  railroad  within  the  terri- 
tory in  question  had  joined  in  such  tariffs  as  participating 
carriers.  The  advance  in  rates  was  averred  to  be  an  "arbi- 
trary and  unlawful  exaction,"  and  to  be  the  direct  outcome 
of  understandings  and  agreements  in  suppression  of  compe- 
tition and  in  unlawful  combination  in  restraint  of  interstate 
trade,  arrived  at  and  made  effective  through  the  agency  of 
the  Southeastern  Freight  Association  and  other  affiliated  as- 
sociations, and  that  the  acts  of  such  combinations  in  mak- 


MACON  GROCERY  CO.  v.  ATLANTIC  COAST  LINE.  503 
215  U.  S.  Opinion  of  the  Court. 

ing  the  advance  of  rates  complained  of  was  the  result  of  a 
conspiracy,  unlawful  as  well  at  conunon  law  as  under  the 
statutes  of  the  United  States.  Averring  that  to  permit  the 
going  into  effect  of  the  proposed  unjust  and  unreasonable 
rates  would  entail  irreparable  loss  and  injury  to  complain- 
ants and  others  similarly  situated,  would  operate  to  the 
prejudice  of  the  public  interest,  and  would  bring  about  a 
multiplicity  of  suits  for  reparation,  the  bill  prayed  the  al- 
lowance of  an  injunction  pendente  lite,  restraining  the  putting 
into  effect  of  the  proposed  advances,  and  that  upon  a  final 
hearing  a  decree  might  be  awarded  perpetually  enjoining 
such  advances. 

Specially  appearing  for  the  purpose,  the  various  defendants 
respectively  filed  a  plea  to  the  jurisdiction,  each  defendant 
asserting  in  substance  an  exemption  from  being  sued  in  a 
district  of  which  it  was  not  an  inhabitant.  Demurrers  to 
the  pleas  to  the  jurisdiction  were  sustained.  Thereupon, 
without  waiving  the  benefit  of  the  pleas,  defendants  jointly 
demurred  to  the  bill  upon  numerous  grounds.  Without  spe- 
cifically passing  on  the  demurrer,  the  court  heard  the  appli- 
cation for  an  injunction,  upon  affidavits  and  documents  sub- 
mitted on  behalf  of  the  complainants,  and  on  August  1,  1908, 
announced  its  opinion  ''sustaining  the  contention  of  the 
complainants  and  directing  the  injunction  prayed  to  issue 
upon  the  condition  that  complainants  should  within  ten  days 
present  their  complaint  to  the  Interstate  Commerce  Commis- 
sion for  investigation  and  determination  of  the  reasonableness 
of  the  rates  involved."  Macon  Grocery  Co.  v.  Atlantic  C,  L, 
R.  Co.,  163  Fed.  Rep.  738.  Two  days  afterwards  an  order  was 
entered,  in  which,  among  other  statements,  it  was  recited — 
"that  the  complainants,  together  with  other  persons  in  the 
cities  of  Atlanta,  Columbus,  Rome  and  Athens,  Georgia, 
have  this  day  filed  with  the  Interstate  Commerce  Commis- 
sion their  complaint,  praying  the  commission  to  investigate 
and  determine  the  reasonableness  of  the  rates  involved,  also 
to  declare  what  are  just  and  reasonable  maximum  rates." 


504  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S, 

The  order  decreed  that  the  defendants  to  the  action  and 
each  of  them — "be  and  they  are  hereby  jointly  and  severally 
enjoined  from  enforcing  collection  of  the  advance  in  rates 
made  effective  August  1st,  1908,  from  Ohio  and  Mississippi 
River  crossings,  Nashville,  Tennessee,  and  points  with  rela- 
tion thereto,  to  all  points  within  the  State  of  Georgia,  on 
Classes  B,  C,  D  and  F,  fresh  meats,  C,  L,  grain  products,  hay 
and  packing-house  products;  this  injunction  to  continue  and 
remain  in  force  pending  an  investigation  and  determination 
of  the  reasonableness  of  the  rates  involved,  by  the  Interstate 
Commerce  Commission,  or  until  further  order  of  the  court." 

Thereupon  an  appeal  was  taken  to  the  Circuit  Court  of 
Appeals  for  the  Fifth  Circuit.  It  was  there  held  that  the  case 
presented  "for  necessary  consideration  the  proper  construc- 
tion of  the  act  to  regulate  commerce,"  and  that  the  jurisdic- 
tion of  the  court  did  not  rest  solely  upon  diversity  of  citi- 
zenship of  the  parties.  The  court,  being  of  opinion  "that  the 
sound  construction  of  the  different  provisions  of  the  act  to 
regulate  commerce  as  amended  and  now  in  force,  necessarily 
forbid  the  exercise  of  the  jurisdiction  attempted  to  be  in- 
voked by  the  bill,"  reversed  the  decree  of  the  Circuit  Court 
and  remanded  the  case  to  that  court  with  instructions  to 
dismiss  the  bill  without  prejudice. 

Assignments  of  error,  eighteen  in  number,  have  been  filed, 
wherein,  in  various  forms  of  statements,  appellants  assail 
the  action  of  the  Circuit  Court  of  Appeals  in  adjudging  that 
the  Circuit  Court  was  without  jurisdiction  over  the  subject- 
matter  of  the  bill.  The  appellees  also,  in  the  argument  at 
bar,  press  upon  our  notice,  as  they  did  below,  the  claims 
made  in  the  special  pleas  to  the  jurisdiction  filed  in  the  Cir- 
cuit Court.  It  is  of  course  the  duty  of  this  court  to  see  to  it 
that  the  jurisdiction  of  the  Circuit  Court  was  not  exceeded, 
(LouisviUe  &  Nashville  R,  R,  Co.  v.  MotOey,  211  U.  S.  149, 
152,  and  cases  cited),  and  we  shall  dispose  of  the  case  before 
us  by  considering  and  deciding  the  last-mentioned  conten- 
tion.   The  basis  of  the  claim  that  the  Circuit  Court  had  not 


MACON  GROCERY  CO.  v.  ATLANTIC  COAST  LINE.  505 

215  U.  S.  Opinion  of  the  Court. 

acquired  jurisdiction  over  the  person  of  the  defendants  was 
that  none  of  the  defendants  was  an  inhabitant  of  the  dis- 
trict in  which  the  suit  was  brought,  and  that  the  suit  being 
one  "wherein  the  jurisdiction  is  not  founded  only  on  the  fact 
that  the  action  is  between  citizens  of  different  States,  but  is 
based  also  upon  acts  of  Congress  of  the  United  States  relat- 
ing to  interstate  commerce  and  alleged  causes  of  action  aris- 
ing thereunder,"  the  defendant  could  not  be  sued  outside  of 
the  district  of  which  it  was  an  inhabitant.  As  cause  of  de- 
murrer to  the  pleas  the  complainants  stated  "that  the  con- 
troversy presented  by  the  bill  is  wholly  between  citizens  of 
different  States,  and  is  solely  founded  upon  diversity  of  cit- 
izenship." While  sustaining  the  demurrer  the  Circuit  Court 
yet  declared: 

"  It  is  true  that  in  this  case  the  illegality  of  the  alleged  in- 
crease in  rates  must  necessarily,  in  large  measure,  be  deter- 
mined by  the  Federal  law.  The  legality  or  illegality  of  the 
aUeged  combination  in  restraint  of  trade  must  be  determined 
by  the  same  law,  and  it  seems  to  be  conceded  that,  generally 
speaking,  this  court  would  not  have  jurisdiction  of  these 
questions  finally  except  under  conditions  which  do  not  exist 
here.  That  is  to  say,  the  court  can  only,  for  final  determina- 
tion, entertain  the  Federal  question  in  the  district  of  which 
the  defendants  are  inhabitants." 

Despite  these  views,  however,  as  the  court  considered,  if 
the  averments  of  the  bill  were  taken  as  true,  there  was  "a 
threatened  and  immediate  violation  of  the  Federal  law  of 
the  gravest  character  to  a  large  number  of  people,"  irrepa- 
rable injury  would  be  occasioned  if  the  increase  in  rates  was 
allowed  to  go  into  effect,  and  as  there  was  not  time  for  those 
affected  to  have  protection  or  seek  recourse  elsewhere,  juris- 
diction was  entertained  for  the  purpose  of  giving  temporary 
relief. 

The  pertinent  section  of  the  statute  regulating  the  original 
jurisdiction  of  Circuit  Courts  of  the  United  States  is  the  first 
section  of  the  act  of  March  3,  1875,  18  Stat.  470,  ch.  137,  as 


506  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

amended  by  the  act  of  March  3,  1887,  24  Stat.  552,  eh.  373, 
as  corrected  by  the  act  of  August  13,  1888,  ch.  866,  25  Stat. 
433,  reading  as  follows: 

"That  the  circuit  courts  of  the  United  States  shall  have 
original  cognizance,  concurrent  with  the  courts  of  the  sev- 
eral States,  of  all  suits  of  a  civil  nature,  at  common  law  or 
in  equity,  where  the  matter  in  dispute  exceeds,  exclusive  of 
interest  and  costs,  the  sum  or  value  of  two  thousand  dollars, 
and  arising  under  the  Constitution  or  laws  of  the  United 
States,  ...  or  in  which  there  shall  be  a  controversy 
between  citizens  of  different  States,  in  which  the  matter  in 
dispute  exceeds,  exclusive  of  interest  and  costs,  the  sum  or 
value  aforesaid.  .  .  .  But  ...  no  civil  suit  shall 
be  brought  before  either  of  said  courts  against  any  person  by 
any  original  process  or  proceeding  in  any  other  district  than 
that  whereof  he  is  an  inhabitant,  but  where  the  jurisdiction 
is  founded  only  on  the  fact  that  the  action  is  between  citi- 
zens of  different  States,  suit  shall  be  brought  only  in  the 
district  of  the  residence  of  either  the  plaintiff  or  the  de- 
fendant." 

In  Potion  v.  Brady ,  184  U.  S.  608,  611,  discussing  the  ques- 
tion as  to  when  a  case  may  be  said  to  arise  under  the  Con- 
stitution of  the  United  States,  the  court  observed: 

*'It  was  said  by  Chief  Justice  Marshall  that  'a  case  in  law 
or  equity  consists  of  the  right  of  the  one  party,  as  well  as  of 
the  other,  and  may  truly  be  said  to  arise  under  the  Consti- 
tution or  a  law  of  the  United  States  whenever  its  correct  de- 
cision depends  on  the  construction  of  either,'  Cohens  v.  Vir- 
ginia,  6  Wheat.  264,  379;  and  again,  when  Hhe  title  or  right 
set  up  by  the  party  may  be  defeated  by  one  construction  of 
the  Constitution  or  law  of  the  United  States,  and  sustained 
by  the  opposite  construction.'  Osborne  v.  Bank  of  United 
States,  9  Wheat.  738,  822.  See  also  GoldrWashing  &  Water 
Co,  V.  Keyes,  96  U.  S.  199,  201;  Tennessee  v.  Davis,  100  U.  S. 
257;  White  v.  Greenhow,  114  U.  S.  307;  Railroad  Company  v. 
Mississippi,,  102  U.  S.  135,  139." 


MACON  GROCERY  CO.  v.  ATLANTIC  COAST  LINE.  507 

215  U.  S.  Opinion  of  the  Court. 

In  Tennessee  v.  Davis,  100  U.  S.  257,  the  court  said: 

"What  constitutes  a  case  thus  arising  was  early  defined 
in  the  case  cited  from  6  Wheaton  {Cohens  v.  Virginia).  It  is 
not  merely  one  where  a  party  comes  into  court  to  demand 
something  conferred  upon  him  by  the  Constitution  or  by  a 
law  or  treaty.  A  case  consists  of  the  right  of  one  party  as 
well  as  the  other,  and  may  truly  be  said  to  arise  under  the 
Constitution  or  a  law  or  a  treaty  of  the  United  States  when- 
ever its  correct  decision  depends  upon  the  construction  of 
either.  Cases  arising  under  the  laws  of  the  United  States 
are  such  as  grow  out  of  the  legislation  of  Congress,  whether 
they  constitute  the  right  or  privilege,  or  claim,  or  protec- 
tion, or  defense  of  the  party,  in  whole  or  in  part,  by  whom 
they  are  asserted.  Story,  Const.,  sec.  1647.  It  was  said  in 
Osborne  v.  Bank  (9  Wheat.  738),  '  WTien  a  question  to  which 
the  judicial  power  of  the  Union  is  extended  by  the  Consti- 
tution forms  an  ingredient  of  the  original  cause,  it  is  in  the 
power  of  Congress  to  give  the  circuit  courts  jurisdiction  of 
that  cause,  although  other  questions  of  fact  or  of  law  may 
be  involved  in  it.'  And  a  case  arises  under  the  laws  of  the 
United  States,  when  it  arises  out  of  the  implication  of  the  law." 

In  cases  of  the  character  of  the  one  at  bar  the  rulings  of 
the  lower  Federal  courts  have  uniformly  been  to  the  effect 
that  they  arose  under  the  Constitution  and  laws  of  the 
United  States.  Tift  v.  Southern  Railway  Co.,  123  Fed.  Rep. 
789,  793;  Northern  Pacific  Ry.  Co.  v.  Pacific,  &c.  Ass'n,  165 
Fed.  Rep.  1,  9;  Memphis  Cotton  Oil  Co.  v.  Illinois  Central 
R.  R.  Co,,  164  Fed.  Rep.  290,  292;  Imperial  Colliery  Co.  v. 
Chesapeake  &  0.  Ry.  Co.,  171  Fed.  Rep.  589.  And  see  Surir 
derland  Bros.  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  158  Fed.  Rep. 
877;  Jewett  Bros.  v.  C,  M.  &  St.  P.  Ry.  Co.,  156  Fed.  Rep. 
160.  We  are  of  opinion  that  the  case  before  us  may  prop- 
erly be  said  to  be  one  arising  under  a  law  or  laws  of  the  United 
States.  As  said  by  Taft,  Circuit  Judge,  in  Toledo,  A.  A.  & 
N.  M.  Ry.  Co.  V.  Pennsylvania  Co.  et  al.,  54  Fed.  Rep.  730: 

"  It  is  immaterial  what  rights  the  complainant  would  have 


508  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

had  before  the  passage  of  the  interstate  commerce  law.  It  is 
sufficient  that  congress,  in  the  constitutional  exercise  of  power, 
has  given  the  positive  sanction  of  federal  law  to  the  rights 
secured  in  the  statute,  and  any  case  involving  the  enforce- 
ment of  those  rights  is  a  case  arising  under  the  laws  of  the 
United  States.'' 

The  object  of  the  bill  was  to  enjoin  alleged  unreasonable 
rates,  threatened  to  be  exacted  by  carriers  subject  to  the  act 
to  regulate  commerce.  The  right  to  be  exempt  from  such 
unlawful  exactions  is  one  protected  by  the  act  in  question, 
and  the  purpose  to  avail  of  the  benefit  of  that  act,  as  well  as 
of  the  anti-trust  act,  is  plainly  indicated  by  the  averments 
of  the  bill.  Of  necessity,  in  determining  the  right  to  the  re- 
lief prayed  for,  a  construction  of  the  act  to  regulate  conmierce 
was  essentially  involved. 

The  jurisdiction  of  the  Circuit  Court  not  being  invoked 
solely  upon  the  ground  of  diversity  of  citizenship,  it  inevi- 
tably follows  that,  as  there  was  no  waiver  of  the  exemption 
from  being  sued  in  the  court  below,  that  court  was  without 
jurisdiction  of  the  persons  of  the  defendants.  In  re  Keasbey 
&  Mattison  Co.,  160  U.  S.  221;  In  re  Moore,  209  U.  S.  490; 
Western  Loan  Co,  v.  Butte  &  Boston  Min.  Co.,  210  U.  S.  368. 
In  the  first  case,  the  question  involved  was  as  to  the  jurisdic- 
tion of  the  United  States  Circuit  Court  for  the  Southern 
District  of  New  York  over  an  action  brought  in  that  court  by 
a  corporation  of  Pennsylvania  against  a  corporation  of  Massa- 
chusetts, having  its  principal  place  of  business  in  New  York 
City,  for  infringement  of  a  trade-mark.  In  the  course  of  the 
opinion  it  was  said  (pp.  228,  229,  230) : 

"But  when  this  suit  was  brought,  the  first  section  of  the 
Judiciary  Act  of  1875  had  been  amended  by  the  act  of  March  3, 
1887,  c.  373,  as  corrected  by  the  act  of  August  13, 1888,  c.  866, 
in  the  parts  above  quoted,  by  substituting  for  the  jurisdic- 
tional amount  of  $500,  exclusive  of  costs,  the  amount  of 
$2,000,  exclusive  of  interest  and  casts;  and  by  striking  out, 
after  the  clause  'and  no  civil  suit  shall  be  brought  before 


MACON  GROCERY  CO.  v.  ATLANTIC  COAST  LINE.  509 
215  U.  S.  Opinion  of  the  Court. 

• 

either  of  said  courts  against  any  person  by  any  original 
process  or  proceeding  in  any  other  district  than  that  whereof 
he  is  an  inhabitant/  the  alternative,  'or  in  which  he  shall  be 
found  at  the  time  of  serving  such  process  or  commencing 
such  proceeding/  and  by  adding  'but  where  the  jurisdiction 
is  founded  only  on  the  fact  that  the  action  is  between  citizens 
of  different  States,  suit  shall  be  brought  only  in  the  district 
of  the  residence  of  either  the  plaintiff  or  the  defendant/  24 
Stat.  552;  25  Stat.  433. 

*'The  last  clause  is  added  by  way  of  proviso  to  the  next 
preceding  clause,  which,  in  its  present  form,  forbids  any  suit 
to  be  brought  in  any  other  district  than  that  of  which  the  de- 
fendant is  an  inhabitant;  and  the  effect  is  that,  in  every  suit 
between  citizens  of  the  United  States,  when  the  jurisdiction 
is  founded  upon  any  of  the  grounds  mentioned  in  this  section, 
other  than  the  citizenship  of  the  parties,  it  must  be  brought 
in  the  district  of  which  the  defendant  is  an  inhabitant;  but 
when  the  jurisdiction  is  founded  only  on  the  fact  that  the 
parties  are  citizens  of  different  States,  the  suit  shall  be  brought 
in  the  district  of  which  either  party  is  an  inhabitant.  And  it 
is  established  by  the  decisions  of  this  court  that,  within  the 
meaning  of  this  act,  a  corporation  cannot  be  considered  a 
citizen,  an  inhabitant  or  a  resident  of  a  State  in  which  it  has 
not  been  incorporated;  and,  consequently,  that  a  corpora- 
tion incorporated  in  a  State  of  the  Union  cannot  be  com- 
pelled to  answer  to  a  civil  suit,  at  law  or  in  equity,  in  a  Cir- 
cuit Court  of  the  United  States  held  in  another  State,  even 
if  the  corporation  has  a  usual  place  of  business  in  that  State. 
McCormick  Co.  v.  Walthers,  134  U.  S.  41,  43;  Shaw  v.  Quincy 
Mining  Co,,  145  U.  S.  444;  Southern  Pacific  Co,  v.  Denton, 
146  U.  S.  202.  Those  cases,  it  is  true,  were  of  the  class  in 
which  the  jurisdiction  is  founded  only  upon  the  fact  that  the 
parties  are  citizens  or  corporations  of  different  States.  But 
the  reasoning  on  which  they  proceeded  is  equally  applicable 
to'  the  other  class,  mentioned  in  the  same  section,  of  suits 
arising  under  the  Constitution,  laws,  or  treaties  of  the  United 


510  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

States;  and  the  only  difference  is  that,  by  the  very  terms  of 
the  statute,  a  suit  of  this  class  is  to  be  brought  in  the  district 
of  which  the  defendant  is  an  inhabitant,  and  cannot,  with- 
out the  consent  of  the  defendant,  be  brought  in  any  other  dis- 
trict, even  in  one  of  which  the  plaintiff  is  an  inhabitant. 

"  This  suit,  then,  assuming  it  to  be  maintainable  under  the 
act  of  1881,  is  one  of  which  the  courts  of  the  United  States 
have  jurisdiction  concurrently  with  the  courts  of  the  several 
States.  The  only  existing  act  of  Congress,  which  enables  it 
to  be  brought  in  the  Circuit  Court  of  the  United  States,  is  the 
act  of  1888.  The  suit  comes  within  the  terms  of  that  act, 
both  as  arising  under  a  law  of  the  United  States,  and  as 
being  between  citizens  of  different  States.  In  either  aspect, 
by  the  provisions  of  the  same  act,  the  defendant  cannot  be 
compelled  to  answer  in  a  district  of  which  neither  the  defend- 
ant nor  the  plaintiff  is  an  inhabitant.  The  objection,  having 
been  seasonably  taken  by  the  defendant  corporation,  appear- 
ing specially  for  the  purpose,  was  rightly  sustained  by  the 
Circuit  Court.'' 

We  are  of  opinion  that  the  jurisdictional  statute  of  1888  is 
applicable,  even  upon  the  assumption  that  the  cause  of  ac- 
tion was  alone  cognizable  in  a  court  of  the  United  States,  as 
the  particular  venue  of  the  action  was  not  provided  for  else- 
where than  in  that  statute. 

The  pleas  to  the  jurisdiction  of  the  Circuit  Court  having 
been  seasonably  made,  should  have  been  sustained  and  the 
bill  dismissed,  without  prejudice,  for  want  of  jurisdiction  over 
the  persons  of  the  defendants.  As,  however,  practically  the 
same  result  will  be  reached  by  the  decree  entered  in  the  Cir- 
cuit Court  of  Appeals,  which  ordered  the  reversal  of  the  decree 
of  the  Circuit  Court  and  remanded  the  cause,  with  instruc- 
tions to  dismiss  the  bill  without  prejudice,  we  affirm  that 
decree  without  expressing  an  opinion  as  to  the  merits  of  the 
reasoning  upon  which  it  was  based. 

Affirmed. 


MACON  GROCERY  CO.  t>.  ATLANTIC  COAST  LINE.  511 
215  U.  S.  Hablan,  J.,  diaaenting. 

% 

Mr.  Justice  Harlan,  dissenting 

I  cannot  agree  to  the  opinion  in  this  case,  and  will  briefly 
state  the  reasons  for  my  dissenting. 

The  plaintiffs  in  error,  citizens  of  Georgia,  brought  this  suit 
in  equity  in  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  Georgia  against  the  defendants  in  error, 
corporations  of  several  different  States,  other  than  Georgia. 
The  relief  sought  was  a  decree  enjoining  those  corporations 
from  putting  in  force  and  maintaining  in  Georgia  certain  rates 
established  by  agreement  among  themselves.  It  seems  to  me 
that  this  case  could  have  been  disposed  of  upon  the  authority 
of  BaUimore  &  Ohio  Railroad  Co,  v.  Pitcaim  Coal  Company, 
recently  decided,  arUCj  p.  481,  in  which  the  court  held,  in  sub- 
stance, that  shippers,  who  complain  of  rates  adopted  by  inter- 
state carriers,  cannot  obtain  relief  by  an  original  suit  brought 
in  any  court,  Federal  or  state,  but  must  make  application,  at 
the  outset,  to  the  Interstate  Commerce  Commission.  This,  I 
think,  is  all  that  need  have  been  said;  for,  whatever  interpre- 
tation was  given  to  the  Judiciary  Act  of  1888,  (25  Stat.  433,) 
the  Circuit  Court  would  have  been  required,  under  the  case 
just  cited,  to  decline  jurisdiction.  But  the  court,  in  its  wis- 
dom, does  not  refer  to  this  view  of  the  case  and  deems  it  neces- 
sary to  determine  whether  the  plaintiffs,  citizens  of  Georgia, 
may,  under  the  Judiciary  Act  of  1888,  considered  alone,  in- 
voke the  jurisdiction  of  the  Circuit  Court,  held  in  that  State, 
against  the  defendant  corporations  of  other  States. 

If  I  correctly  interpret  the  opinion  of  the  court,  it  proceeds 
on  the  theory  that  if  the  action  had  been  founded  alone  on 
diversity  of  citizenship  the  suit — although  the  defendants 
were  corporations  of  other  States — could  have  been  main- 
tained in  the  United  States  Circuit  Court  sitting  in  Georgia, 
that  being  the  State  of  the  residence  of  the  plaintiffs.  But  as 
the  plaintiffs  were  so  unfortunate  as  to  possess  and,  in  their 
pleadings,  to  assert,  in  addition  to  diversity  of  citizenship,  a 
Federal  right  and  to  seek  to  have  that  right  protected  by  the 


612  OCTOBER  TERM,  1909. 

Harlan,  J.,  dissenting.  215  U.  S. 

Federal  court  against  the  illegal  acts  of  the  defendant  corpo- 
rations, they  must  now  either  go  into  a  state  court  of  Geoi^a, 
in  order  to  obtain  the  desired  relief,  or  go  to  the  respective 
States,  however  distant,  which  incorporated  the  defendants 
and  sue  there.  Certain  cases  are  referred  to  as  requiring  this 
construction  of  the  act  of  1888 — McCormick  Harvesting  Ma- 
chine Co.  V.  Walthers,  134  U.  S.  41;  Shaw  v.  Quincy  Mining 
Company,  145  U.  S.  444,  and  In  re  Keasbey  and  Mattison  Co., 
160  U.  S.  221.  But  I  cannot  perceive  that  there  was  in  either 
of  those  cases  such  a  question  as  the  one  just  stated.  Neither 
of  them  actually  involved  or  decided  any  such  question.  The 
McCormick  case  was  a  suit  in  the  Circuit  Court  of  Nebraska, 
by  a  citizen  of  that  State,  against  an  Illinois  corporation,  hav- 
ing an  agent  in  Nebraska.  The  defendant  pleaded  that,  as  it 
was  not  an  inhabitant  of  Nebraska,  it  could  not,  under  the 
act  of  1888,  be  sued  in  that  State.  But  this  plea  was  over- 
ruled by  the  court  below  and  this  court  held  that  the  Mc- 
Cormick Company,  although  not  an  inhabitant  of  Nebraska, 
was  liable  to  be  sued  in  the  Federal  court  held  in  the  State  of 
the  plaintiff's  residence.  Nothing  more  was  involved  or  de- 
cided in  that  case.  The  Shaw  case  was  a  civil  suit  brought  in 
the  Federal  court,  sitting  in  New  York,  by  a  citizen  of  Massa- 
chusetts against  a  citizen  of  Michigan.  But  although  the 
parties  were  citizens  of  different  States,  neither  the  plaintiff 
nor  the  defendant  resided  in  or  was  a  citizen  of  the  State  in 
which  the  suit  was  brought.  What  was  really  involved  in  that 
case  and  what  was  decided  appears  from  the  last  paragraph 
of  the  opinion  of  this  court,  as  follows  (p.  453):  "All  that  is 
now  decided  is  that,  under  the  existing  act  of  Congress  a  corpo- 
ration, incorporated  in  one  State  only,  cannot  be  compelled 
to  answer,  in  a  Circuit  Court  of  the  United  States  held  in  an- 
other State  in  which  it  has  a  usual  place  of  business,  to  a  civil 
suit,  at  law  or  in  equity,  brought  by  a  citizen  of  a  differenJt  State" 
In  the  Keasbey 'Mattison  case  it  appears  that  the  suit  was 
brought,  in  the  Federal  court  of  New  York,  by  a  Pennsyl- 
vania corporation  against  a  Massachusetts  corporation.    What 


MACON  GROCERY  CO.  v.  ATLANTIC  COAST  LINE.  513 
215  U.  S.  Harlan,  J.,  dissenting. 

the  court  said  leaves  no  doubt  as  to  what  was  intended  to  be 
decided.  It  said :  "This  suit,  then,  assuming  it  to  be  maintain- 
able under  the  act  of  1881,  is  one  of  which  the  courts  of  the 
United  States  have  jurisdiction  concurrently  with  the  courts 
of  the  several  States.  The  only  existing  act  of  Congress,  which 
enables  it  to  be  brought  in  the  Circuit  Court  of  the  United 
States,  is  the  act  of  1888.  This  suit  comes  within  the  terms  of 
that  act,  both  as  arising  under  a  law  of  the  United  States,  and 
as  being  between  citizens  of  different  States.  In  either  aspect, 
by  the  provisions  of  the  same  act,  the  defendant  cannot  be 
compelled  to  answer  in  a  district  of  which  neither  the  defendant 
nor  the  plaintiff  is  an  inhabitant.^'  Whatever  general  expres- 
sions are  to  be  found  in  the  opinions  in  the  cases  cited  neither 
of  those  cases  is  an  authority  for  the  broad,  unqualified  state- 
ment that  the  United  States  Circuit  Court,  held  in  a  State  of 
which  the  plaintiff  is  a  citizen,  may  not  take  cognizance  of  a 
suit  brought  by  him  in  a  Federal  court  against  a  corporation 
of  another  State,  where  such  suit  presents  a  controversy  be- 
tween citizens  of  different  States  and,  in  addition^  discloses  the 
fact  that  the  plaintiff  claims  a  Federal  right  which  needs  to  be 
protected  against  the  wrongful  or  illegal  acts  of  the  defendant 
corporation.  This  proposition  is,  of  course,  subject  to  the  con- 
dition that  the  foreign  corporation,  by  having  an  agency  in 
Geoi^a  or  otherwise,  can  be  reached  by  some  process  and 
brought  into  the  Federal  court  sitting  in  Georgia.  It  is  in- 
conceivable, I  think,  that  Congress  intended  to  deprive  the 
Federal  court,  sitting  in  the  State  of  the  plaintiff's  residence  of 
jurisdiction  to  protect  his  Federal  right,  simply  because  it 
appears  from  the  record  that  the  defendant  and  the  alleged 
wrongdoer  are  citizens  of  different  States.  It  necessarily 
follows  from  the  opinion  of  the  court  in  this  case  that  where  a 
citizen  of  another  State  is  sued  in  a  state  court,  and  the  suit  in- 
volves a  Federal  right  claimed  by  the  plaintiff,  the  defendant 
cannot  remove  the  case  to  the  Federal  court,  but  must  remain 
in  the  state  court  of  original  jurisdiction,  and  there  defend  his 
asserted  Federal  right.  The  state  court  might  well  say,  under 
VOL.  ccxv — 33 


614  OCTOBER  TERM,  1909. 

Harlan,  J.,  dissenting.  215  U.  3. 

the  opinion  just  delivered,  that  although  the  controversy  be- 
tween the  parties  involves  Federal  rights,  and  presents  a  con- 
troversy between  citizens  of  different  States,  as  well  as  one 
arising  under  the  Constitution  and  laws  of  the  United  States, 
it  is  a  suit  of  which  the  Federal  court  could  not  take  cognizance 
by  removal.  We  so  say  because  such  a  case  could  not,  under 
the  court's  present  view  of  the  act  of  1888,  have  been  originally 
brought  in  that  court,  and  because,  according  to  the  settled 
doctrines  of  this  court,  no  case  can  be  removed  from  a  state 
court  to  a  Federal  court  which  could  not  have  been  originally 
brought  in  the  latter  court.  Tennessee  v.  Union  &  Planters' 
Bank,  152  U.  S.  454;  Arkansas  v.  Coal  Co,,  183  U.  S.  185;  Joy 
V.  St.  Louis,  201  U.  S.  332,  340-1. 

I  recognize  the  fact  that  the  act  of  1888  was  not  drawn  with 
precision.  But  I  am  of  opinion  that  as  the  act  gives  the  Circuit 
Court  original  jurisdiction,  concurrent  with  the  courts  of  the 
several  States,  "  of  all  suits  of  a  civil  nature,  at  common  law  or 
in  equity,  where  the  matter  in  dispute  exceeds,  exclusive  of 
interest  and  costs,  the  sum  or  value  of  two  thousand  dol- 
lars, ...  in  which  there  shall  be  a  controversy  between 
citizens  of  different  States,"  the  intention  of  Congress  would  be 
best  effectuated  by  holding  that  the  jurisdiction  of  the  Circuit 
Court  is  not  excluded,  in  a  controversy  between  citizens  of 
different  States,  simply  because  the  plaintiff,  who  sued  in  the 
Federal  Court  held  in  the  State  of  his  residence,  asserts  a 
Federal  right  and  seeks  to  have  it  protected  against  the  illegal 
acts  of  the  defendant,  a  citizen  of  another  State;  provided, 
always,  that  the  defendant,  if  a  corporation  of  another  State, 
may,  through  agents  conducting  its  business  in  the  State 
where  the  suit  is  brought,  be  reached  by  the  process  of  the 
court  and  subjected  to  its  authority.  The  presence  in  the  case 
of  a  Federal  right  asserted  by  the  plaintiff  ought  not  prejudice 
him  and  does  not,  I  think,  alter  the  fact  that  the  controversy 
is  one  of  which  a  Circuit  Court  may  take  cognizance,  because 
it  is  a  controversy  between  citizens  of  different  States. 


FLAHERTY  v.  HANSON.  515 

215  U.  S.  Argument  for  Plaintiff  in  Ebror. 


THE  STATE  OF  NORTH  DAKOTA  EX  REL.  FLAHERTY 
V.  HANSON,  SHERIFF  OF  GRAND  FORKS  COUNTY. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  NORTH 

DAKOTA. 

No.  47.    Submitted  November  29,  1909.— Decided  January  17, 1910. 

A  State  cannot  place  a  burden  on  a  lawful  taxing  power  of  the  United 
States;  nor  can  it  place  a  burden  upon  the  person  paying  a  tax  to 
the  United  States  solely  because  of  such  payment  and  without 
reference  to  the  doing  by  such  person  of  any  act  within  the  State 
and  subject  to  its  regulating  authority. 

A  State  cannot  so  exert  its  police  power  as  to  directly  hamper  or 
destroy  a  lawful  authority  of  the  United  States. 

A  state  statute  requiring  the  holder  of  a  Federal  liquor  license  to 
perform  duties  in  conflict  with  the  requirement  of  the  Federal 
statute  is  an  exercise  of  power  repugnant  to  the  Constitution  and 
cannot  be  enforced;  and  so  held  as  to  chap.  189,  General  Laws  of 
North  Dakota,  1907,  requiring  the  holder  of  such  a  license  to  file 
and  publish  a  copy  thereof. 

(iuctre,  whether  the  payment  to  the  United  States  of  the  special  liquor 
tax  and  taking  a  receipt  therefor  creates  a  prima  facie  presumption 
that  the  person  holding  the  receipt  is  engaged  in  the  liquor  business. 

16  N.  Dak.  347,  reversed. 

The  facts,  which  involve  the  constitutionality  of  a  statute 
of  North  Dakota,  are  stated  in  the  opinion. 

Mr,  Edward  Engerud,  Mr.  Daniel  B,  HoU,  Mr.  John  S. 
Frame  and  Mr.  George  A.  Bangs  for  plaintiff  in  error: 

The  act  complained  of,  chap.  189,  Gen'l  Laws,  1907,  of 
North  Dakota  is  not  a  regulation  for  sale  of  liquor  and  is  not  a 
proper  exercise  of  the  police  power  of  the  State.  It  relates 
only  to  the  holders  of  Federal  licenses. 

Even  if  such  was  the  intent  of  the  legislature,  effect  cannot 
be  so  given  to  it  unless  the  language  is  plain  and  unambiguous. 
Courts  cannot  imagine  an  intent  and  twist  the  language  so  as 
to  substitute  what  the  court  thinks  the  law  should  have  been 


61C  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 

instead  of  what  it  is.  Ruggles  v.  lUinoiSy  108  U.  S.  526; 
United  States  v.  Fisher,  2  Cranch,  358;  United  States  v.  Wilt- 
berger,  5  Wheat.  95;  United  States  v.  HartweU,  6  Wall.  395. 

The  act  does  not  regulate  the  liquor  business  in  the  State 
because  it  does  not  apply  to  all  persons  in  the  State. 

The  act  deprives  the  state  court  of  the  power  to  decide  who 
are  liquor  dealers  within  the  meaning  of  the  state  law.  It 
aflfects  only  those  dealers  who  obey  the  Federal  law  and  post 
their  receipts. 

The  incriminating  facts  under  the  statute  are  the  posses- 
sion of  a  Federal  tax  receipt  and  failure  to  register  and  pub- 
lish it. 

The  statute  is  an  attempt  to  exercise  police  power  inherent 
in  the  State,  but  it  cannot  be  enforced  without  resort  to  the 
Federal  statutes.  This  situation  is  foreign  to  our  form  of 
government.  Butchers^  Union  v.  Crescent  City,  111  U.  S.  746; 
Ableman  v.  Booth,  21  How.  506;  United  States  v.  Tarble,  13 
Wall.  397;  Cooley,  Const.  Law,  399;  Thorpe  v.  Railroad  Co., 
27  Vermont,  140. 

The  act  is  an  unlawful  interference  with  Federal  regulations. 

The  fact  that  the  state  legislature  intended  by  the  law  in 
question  to  make  the  enforcement  of  the  prohibition  laws 
of  the  State  more  easy  and  certain  cannot  save  it  if  in  truth 
it  interferes  in  any  manner  with  a  subject  over  which  the 
Federal  Government  has  control.  Bowman  v.  Chicago,  Ac, 
125  U.  S.  475;  Rhodes  v.  loiua,  170  U.  S.  412. 

There  can  be  no  question  made  of  the  right  of  Congress  to 
raise  revenue  for  the  maintenance  of  the  Federal  Government 
by  taxing  those  who  engage  in  the  sale  of  liquors,  and  it  is 
equally  within  the  power  of  Congress  to  prescribe  the  con- 
ditions under  which  that  tax  shall  be  paid,  and  the  notice 
which  the  person  paying  it  shall  give  to  the  public  of  the  fact 
of  such  pajrment. 

While  the  State  is  not  prohibited  from  also  taxing  the  per- 
sons who  engage  in  that  business  because  of  the  fact  that  Con- 
gress has  seen  fit  to  tax  them  it  cannot  lay  upon  those  persons 


FLAHERTY  v.  HANSON,  517 

215  U.  S.  Opinion  of  the  Court. 

duties  and  obligations  different  from  those  imposed  by  Con- 
gress. 

The  sovereignty  of  a  State  extends  to  everything  which  ex- 
ists by  its  own  authority  or  is  introduced  by  its  permission, 
but  does  not  extend  to  those  means  which  are  employed  by 
Congress  to  carry  into  execution  powers  conferred  on  that 
body  by  the  people  of  the  United  States.  McCuUoch  v,  Mary^ 
landy  4  Wheat.  316;  Prigg  v,  Pennsylvania,  16  Pet.  539; 
Houston  V.  Moore,  5  Wheat.  1 

To  the  same  effect  also  see  Farmers'  &c.  Bank  v.  Dearing, 
91  U.  S.  29;  Easton  v.  lotva,  188  U.  S.  220;  Ohio  v.  Thomas, 
173  U.  S.  276;  Sturgis  v.  Crovminshield,  4  Wheat.  122;  PaUer- 
son  V.  Kentucky,  97  U.  S.  501 ;  WOber  v.  Virginia,  103  U.  S. 
344;  Commonwealth  v.  Petty,  29  S.  W.  Rep.  291;  Cranson  v. 
Smith,  37  Michigan,  309;  HoUida  v.  Hunt,  70  Illinois,  109; 
Commomoealth  v.  Fdton,  101  Massachusetts,  204;  Crittenden 
V.  White,  23  Minnesota,  24;  People  v.  Kennedy,  38  California, 
147;  StaU  v.  Pike,  15  N.  H.  83. 

Besides  being  an  unwarranted  usurpation  of  authority  over 
transactions  and  relations  between  the  Federal  Government 
and  its  citizens,  the  act  interferes  with  and  impedes  the 
operations  of  the  Federal  laws  relating  to  internal  revenue. 

There  was  no  appearance  or  brief  for  defendant  in  error. 

Mr.  Justice  WnrrE  delivered  the  opinion  of  the  court. 

By  §  18  of  the  act  of  February  8, 1875,  ch.  36, 18  Stat.  307, 
as  amended  by  §  4  of  the  act  of  March  1, 1879,  ch.  125, 20  Stat. 
327,  333,  a  special  tax  of  twenty-five  dollars  is  imposed  on  re- 
tail dealers  in  liquors,  as  therein  defined,  and  a  tax  of  twenty 
dollars  on  a  retail  dealer  in  malt  liquors.  By  Rev.  Stat., 
§§  3232  and  3233  a  person  is  forbidden  to  engage  in  or  carry 
on  any  trade  or  business  made  subject  to  a  special  tax  until 
the  tax  has  been  paid,  and  it  is  made  the  duty  of  one  engaging 
in  a  trade  or  business  on  which  a  special  tax  is  imposed  by  law 


518  OCTOBER  TERM,  1909. 

Opinion  of  the  C!ourt.  215  U.  S. 

to  register  with  the  collector  of  the  district  "  his  name  or  style, 
place  of  residence,  trade  or  business,  and  the  place  where  such 
trade  or  business  is  to  be  carried  on."  In  addition,  Rev.  Stat., 
§  3239,  as  amended  by  the  act  of  February  27, 1877,  ch.  69, 19 
Stat.  240,  requires  every  person  engaging  in  any  business, 
made  liable  to  a  special  tax,  except  tobacco  peddlers,  to  place 
and  keep  conspicuously  in  his  establishment  or  place  of  busi- 
ness all  stamps  denoting  the  payment  of  said  special  tax,  and 
penalties  are  affixed  for  non-compUance.  So  also  any  one 
carrying  on  a  business  made  liable  to  a  special  tax  without 
payment  of  the  tax  is  subject  to  fine  and  imprisonment  under 
§  16  of  the  act  of  1875. 

By  other  sections  of  the  Revised  Statutes  it  is  provided  as 
follows : 

"Sec.  3240.  Each  collector  of  internal  revenue  shall,  under 
regulations  of  the  Commissioner  of  Internal  Revenue,  place 
and  keep  conspicuously  in  his  office,  for  public  inspection,*  an 
alphabetical  list  of  the  names  of  all  persons  who  shall  have  paid 
special  taxes  within  his  district,  and  shall  state  thereon  the 
time,  place,  and  business  for  which  such  special  taxes  have 
been  paid. 

a|ca|ea|ea|ea|ea|e4ca|c 

"Sec,  3243.  The  payment  of  any  tax  imposed  by  the  inter- 
nal-revenue laws  for  carrying  on  any  trade  or  business  shall 
not  be  held  to  exempt  any  person  from  any  penalty  or  punish- 
ment provided  by  the  laws  of  any  State  for  carrying  on  the 
same  within  such  State,  or  in  any  manner  to  authorize  the 
conmiencement  or  continuance  of  such  trade  or  business  con- 
trary to  the  laws  of  such  State  or  in  places  prohibited  by 
municipal  law ;  nor  shall  the  payment  of  any  such  tax  be  held 
to  prohibit  any  State  from  placing  a  duty  or  tax  on  the  same 
trade  or  business,  for  State  or  other  purposes." 

The  State  of  North  Dakota  on  March  13,  1907  (Laws  No. 
Dak.,  1907,  p.  307),  enacted  a  law  requiring  the  registration 
and  publication  of  any  receipt,  stamp  or  Ucense,  showing  the 
payment  of  the  special  tax  levied  under  the  laws  of  the  United 


FLAHERTY  v.  HANSON.  519 

216  U.  S.  Opinion  of  the  Court. 

States  upon  the  business  of  selling  distilled,  malted  and  fer- 
mented liquor.  Briefly,  the  law  provides  as  follows:  A  notice 
of  the  particulars  contained  in  the  receipt  or  license  and  other 
details  respecting  the  place  where  the  tax  receipt  or  license  is 
posted,  etc.,  is  required  to  be  made  for  three  weeks  in  official 
newspapers,  and  the  fees  for  publication  are  declared  to  be  the 
same  "as  allowed  by  law  for  the  publication  of  other  legal 
notices."  The  holder  of  the  receipt  or  license  is  also  required 
to  place  and  keep  posted,  at  all  times,  with  the  government  tax 
receipts  or  license,  an  affidavit  of  the  fact  of  publication  and 
the  obtaining  of  such  license,  etc.,  together  with  a  copy  of  the 
notices  or  advertisements.  A  duly  authenticated  copy  of  the 
tax  receipt  or  license  is  required  to  be  filed  with  a  named  offi- 
cial, to  whom  a  ten-dollar  filing  fee  is  to  be  paid,  and  such 
official  is  required  to  publish,  in  certain  official  newspapers,  the 
first  week  in  each  month,  a  list  of  all  such  tax  receipts  or 
licenses  filed  during  the  previous  month,  such  notice  to  be 
published  one  week  in  each  newspaper. 

Upon  complaint  made  before  a  committing  magistrate,  for 
the  county  of  Grand  Forks,  State  of  North  Dakota,  R.  E. 
Flaherty,  by  the  name  of  R.  C.  Flarty,  was  held  to  answer  upon 
a  charge  of  neglecting  to  register  and  publish  a  government 
receipt  for  the  payment  of  an  internal  revenue  tax  on  the  busi- 
ness of  a  retail  dealer  in  malt  liquors.  Having  been  committed 
to  the  custody  of  the  sheriff,  Flaherty  unsuccessfully  made  ap- 
plication for  a  writ  of  habeas  corjms  to  a  judge  of  a  state  Dis- 
trict Court.  Afterwards  a  similar  application  was  made  to  the 
Supreme  Court  of  the  State  and  the  writ  was  granted  by  that 
court,  but,  upon  hearing,  the  writ  was  quashed.  State  ex  rd. 
Flaherty  v.  Hanson^  16  No.  Dak.  347.  This  writ  of  error  was 
thereupon  prosecuted. 

The  detention  complained  of  was  asserted  to  be  illegal  upon 
the  ground  that  the  law  upon  which  the  prosecution  was  based 
was  repugnant  to  the  state  and  Federal  Constitutions.  We, 
of  course,  have  to  deal  solely  with  the  claim  of  alleged  re- 
pugnancy to  the  Constitution  of  the  United  States. 


520  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215 17.  S. 

The  law  of  North  Dakota^  which  we  have  already  sum- 
marized, is  in  the  margin.^ 
The  state  court  was  of  opinion  that  the  law  made  the  person 

^  An  act  providing  for  the  publication  and  registration  of  special  tax 
receipts  or  licenses  from  the  Government  of  the  United  States 
to  sell  distilled,  malt  and  fermented  liquors,  issued  to  persons  in 
North  Dakota,  the  payment  and  collection  of  registration  fees 
and  publication  fees,  regulating  the  posting  and  exhibiting  of 
such  tax  receipts  or  licenses,  prescribing  the  duties  of  officials 
and  owners  and  lessors  of  property  in  relation  thereto,  prescribing 
penalties  for  failure  to  perform  the  duties  prescribed  and  other 
regulations  pertaining  to  the  sale  of  intoxicating  liquors. 
Be  it  enacted  by  the  Legislative  Assembly  of  the  State  of  North 
Dakota: 

§  1.  Liquor  license.  Tax  receipt  must  be  registered. — Every  re- 
ceipt, stamp  or  license  showing  payment  of  the  special  tax  levied 
under  the  laws  of  the  United  States  upon  the  business  of  selling 
distilled,  malt  or  fermented  liquor,  issued  to  or  held  by  any  person, 
firm  or  corporation  in  this  state  shall  be  r^stered  and  published  as 
in  this  act  required. 

§  2.  Notice  to  be  published.  Contains  what. — Inunediately  upon 
posting  or  displa3ring  the  special  tax  receipt  or  license  mentioned  in 
said  section  one  of  this  act  as  required  under  government  regulations, 
it  shall  be  the  duty  of  the  person  in  whose  name  such  tax  receipt  or 
license  is  issued,  to  cause  to  be  published  for  three  successive  weeks 
in  the  official  newspaper  of  the  county  and  for  the  same  period  in  the 
official  newspc^per  of  the  city,  if  within  an  incorporated  city,  a  notice 
which  shall  contain  the  following  information:  Name  of  person  to  whom 
the  government  tax  receipt  or  license  is  issued;  date  of  special  tax 
receipt  or  license;  description  of  property  where  said  tax  receipt  or 
license  is  posted,  and,  if  within  an  incorporated  city,  the  number  of 
the  lot  and  block  and  street  number  and  setting  forth  specifically  the 
room,  building  or  place  where  said  tax  receipt  or  license  is  posted; 
the  name  of  the  owner  and  the  name  of  the  lessor  of  the  property  in 
which  said  tax  receipt  or  license  is  posted.  Upon  discontinuance  of 
business  or  removal  of  the  special  tax  receipt  or  license  mentioned 
in  section  one  of  this  act  to  another  building  or  place,  a  similar  notice 
containing  the  information  prescribed  in  this  section,  shall  be  pub- 
lished in  the  same  manner  as  prescribed  herein,  and  setting  forth 
further  the  fact  of  removal,  giving  date  and  description  of  place  to 
vvhich  such  removal  is  made  as  fully  as  in  the  original  notice. 


FLAHERTY  v.  HANSON.  521 

215  U.  S.  Opinion  of  the  Court. 

who  had  paid  the  special  United  States  tax  and  taken  a  receipt 
therefor  subject  to  the  burdens  which  the  law  imposed,  wholly 
without  reference  to  whether  such  person  so  pa3dng  the  tax 

§  3.  Copy  of  receipt  filed  with  auditor. — It  shall  be  the  further  duty 
of  any  person  to  whom  a  tax  receipt  or  license  from  the  government 
of  the  United  States  is  issued,  as  mentioned  in  section  one  of  this  act, 
to  file  a  duly  authenticated  copy  of  the  same  before  or  immediately 
upon  posting,  if  in  an  incorporated  city  with  the  city  auditor,  other- 
wise with  the  county  auditor  of  the  county  and  pay  a  fee  for  the  filing 
thereof  of  ten  dollars,  which  fee  shall  be  turned  into  the  general  fund 
of  the  city  or  county  as  the  case  may  be. 

.  §  4.  Auditor  publishes  list  of  licenses. — ^The  city  auditor,  if  in  an 
incorporated  city,  or  county  auditor,  if  not  within  an  incorporated 
city,  shall  be  required  to  publish  in  the  official  newspaper  of  the  city 
and  each  of  the  official  newspapers  of  the  county  the  first  week  in  each 
month  a  list  of  all  such  tax  receipts  or  licenses  filed  during  the  previous 
month,  such  notice  to  be  published  one  week  in  each  newspaper. 

i  5.  Fees  for  publication.  Copy  posted. — ^The  fee  for  publication 
of  notices  required  under  this  act  shall  be  the  same  as  allowed  by  law 
for  publication  of  other  legal  notices  and  the  publisher  may  require 
the  fee  for  such  publication  to  be  paid  in  advance.  Upon  the  expira- 
tion of  the  publication  required  by  this  act  the  publisher  or  manager 
of  the  newspaper  in  which  said  notice  is  published  shall  make  an 
affidavit  of  publication  with  a  copy  of  the  advertisement  attached 
thereto,  together  with  the  copy  of  notice  or  advertisement  referred 
to  herein  shall  be  posted  and  remain  posted  at  all  times  with  the  tax 
receipt  or  license  referred  to  in  section  one  of  this  act. 

§  6.  Owner  of  premises  must  publish,  when.  Penalty  for  failure. — 
In  case  the  person  to  whom  the  tax  receipt  or  license  referred  to  in 
section  one  of  this  act  shall  be  issued,  shall  fail  to  cause  to  be  published 
the  notice  required  by  this  act,  it  shall  be  the  duty  of  the  owner  or 
lessor  of  the  premises  whereon  or  wherein  the  tax  receipt  or  license' 
from  the  government  of  the  United  States  referred  to  in  section  one 
of  this  act  shall  be  posted,  to  cause  such  advertisement  to  be  pub- 
lished as  in  this  act  required  and  if  such  owner  or  lessor  shall  know- 
ingly fail  to  do  so  he  shall  be  guilty  of  a  misdemeanor. 

§  7.  Duty  of  officers. — It  shall  be  the  duty  of  every  sheriff,  deputy 
sheriff,  constable,  mayor,  marshal,  police  judge  and  police  officer  of 
any  city  or  town  having  knowledge  of  any  violation  of  the  provisions 
of  this  act  to  notify  the  state's  attorney  of  the  fact  of  such  violation 
and  to  furnish  him  the  names  of  any  witnesses  within  his  knowledge 


522  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

and  taking  the  receipt  had  posted  the  same,  as  required  by  the 
laws  of  the  United  States,  or  done  any  act  within  the  State. 
The  court  said  (p.  353) : 

"The  argument  of  petitioner's  counsel  to  the  effect  that  the 
act  applies  only  to  those  persons  who  have  complied  with  the 
federal  statute  with  reference  to  posting  the  receipts  for  the 
payment  of  such  tax  is,  we  think,  unsound.  While  section  2 
of  the  act,  when  given  a  literal  construction,  and  without  con- 
sidering the  other  portions  of  the  act,  would  appear  to  sustain 
petitioner's  contention,  in  this  respect,  we  think  it  apparent 
that  when  the  whole  act  is  construed  together  the  legisla- 
tive intent  that  the  same  shall  apply  to  all  who  have  paid 
the  federal  tax  is  apparent  and  such  intent  must  be  given 
eflfect." 

Considering  the  contention  that  the  sole  purpose  was  to 
burden  the  person  who  made  a  payment  of  a  tax  to  the  United 

by  whom  such  violation  can  be  proven.  If  any  such  officer  shall  fail 
to  comply  with  the  provisions  of  this  section  he  shall  be  guilty  of  a 
misdemeanor  and  upon  conviction,  in  addition  to  the  punishment 
therefor  prescribed  by  law,  shall  forfeit  his  office.  For  failure  or  neg- 
lect of  official  duty  in  the  enforcement  of  this  act  any  of  the  city  or 
county  officers  herein  referred  to  may  be  removed  by  civil  action. 

§  8.  Duty  of  county  auditor. — It  shall  be  the  duty  of  the  county 
auditor  of  each  county  to  apply  to  the  internal  revenue  department 
of  the  government  of  the  United  States  the  first  week  in  each  month 
for  a  list  of  all  special  tax  receipts  or  licenses  mentioned  in  section  one 
of  this  act  issued  to  persons  within  his  county,  naming  the  persons, 
date  and  places,  and  the  same  shall  be  immediately  published  one 
week  in  each  of  the  official  newspapers  of  the  county  and  city.  The 
cost  of  procuring  such  information,  upon  filing  of  a  duly  verified 
voucher,  shall  be  paid  by  the  county  as  other  coimty  expenses  are 
paid. 

§  9.  Penalty. — Failure  on  the  part  of  any  person  to  comply  with 
the  provisions  of  this  act  shall  constitute  a  misdemeanor. 

§  10.  Emergency. — Whereas,  it  is  desirable  that  the  publicity  re- 
quired by  this  act  shall  begin  as  soon  as  possible,  an  emeigency  exists 
and  this  act  shall  be  in  force  from  and  after  its  passage  and  approval. 

Approved  March  13,  1907.    (Laws  of  Nor.  Dak.,  1907,  p.  307.) 


FLAHERTY  v.  HANSON.  623 

215  U.  S.  Opinion  of  the  Court. 

States,  and  thus  in  effect  hinder  the  making  of  such  payments^ 
the  court  said  (p.  350) : 

"Such  is  not  the  scope  nor  intent  of  the  act,  as  we  construe 
it;  but,  on  the  contrary,  the  obvious  purpose  sought  to  be  ac- 
complished by  its  enactment  was  to  furnish  knowledge  to  the 
public  and  all  concerned  of  the  fact  that  the  persons  who  have 
paid  such  tax  to  the  government  are  or  may  become  engaged 
in  the  business  of  selling  intoxicating  liquors  contrary  to  the 
laws  of  this  state.  Its  purpose,  in  other  words,  was  solely  to 
furnish  knowledge  to  aid  in  the  enforcement  of  our  statute 
against  the  unlawful  traffic  in  intoxicating  liquors. 

*'The  legislature,  in  enacting  this  law,  merely  did  what  it 
had  the  unquestioned  right  to  do  under  the  police  power  of  the 
state.  Such  power  is  very  broad  and  it  is  limited  only  by  the 
constitution  and  laws  of  the  United  States  and  the  constitu- 
tion of  this  state.  That  the  legislature  has  the  right,  within 
the  police  power  of  the  state,  to  provide  that  the  possession  of 
an  internal  revenue  tax  receipt  for  the  payment  of  the  govern- 
ment tax  upon  the  occupation  of  retail  dealer  in  fermented  and 
distilled  liquors  shall  constitute  prima  fade  evidence  that  the 
possessor  is  violating,  or  has  violated  the  prohibition  law  of  the 
state,  is  too  well  settled  to  admit  of  serious  doubt.  23  Cyc. 
255,  and  cases  cited.  Yet  such  a  law  is  no  less  free  from  the 
objection  urged  by  petitioner's  counsel  than  is  the  act  in  quesr 
tion.  If  such  a  law  is  constitutional,  then  why  cannot  the 
legislature  also  enact  a  law  making  it  a  public  offense  for  any 
citizen  of  the  state  to  procure  such  a  receipt  and  neglect  or  re- 
fuse to  furnish  a  public  record  thereof,  and  to  give  the  most 
complete  publicity  to  the  fact  of  its  issuance?  Such  a  law 
would  certainly  have  a  tendency  to  aid  in  the  better  enforce- 
ment of  the  law  against  such  illegal  traffic,  and  we  are  aware 
of  no  provision,  either  in  the  federal  Constitution  or  statutes 
or  in  the  constitution  of  the  state,  which  directly  or  impliedly 
prohibits  such  legislation." 

As  thus  interpreted,  the  law  was  held  not  to  be  repugnant  to 


524  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

the  Constitution  of  the  United  States,  and  to  be  but  a  lawful 
exercise  of  the  police  power  of  the  State  to  regulate  the  traffic 
in  liquor  within  the  State. 

The  errors  assigned  insist  that  the  statute,  as  thus  con- 
strued, is  repugnant  to  the  Constitution  of  the  United  States: 
First,  because,  under  the  guise  of  the  exertion  of  the  police 
power  of  the  State,  the  law  really  imposes  a  burden  directly 
upon  the  exertion  by  the  Government  of  the  United  States  of 
its  lawful  power  of  taxation,  and  because,  even  if  this  be  not 
the  case,  the  conditions  and  requirements  of  the  statute  are  so 
in  conflict  with  the  act  of  Congress  concerning  the  payment  of 
the  tax  and  the  issuance  of  the  receipt  as  to  amount  to  a  direct 
burden  upon  the  constitutional  power  of  Congress  to  tax. 

The  propositions,  which  are  in  substance  one  and  the  same, 
we  think  are  well  founded.  Under  the  construction  placed 
upon  the  statute  by  the  court  below  we  see  no  escape  from  the 
conclusion  that  it  immediately  and  directly  places  a  burden 
upon  the  lawful  taxing  power  of  the  United  States,  or,  what  is 
equivalent  thereto,  places  the  burden  upon  the  person  who 
pays  the  United  States  tax,  solely  because  of  the  pasmfient  of 
such  tax  and  wholly  without  reference  to  the  doing  by  the  per- 
son of  any  act  within  the  State  which  is  subject  to  the  regu- 
lating authority  of  the  State.  That  the  attempted  exertion 
of  such  a  power  is  repugnant  to  the  Constitution  of  the  United 
States  is  so  elementary  as  to  require  nothing  but  statement. 
We  place  in  the  margin,^  however,  a  few  of  the  numerous  cases 
in  which  the  principle  has  been  announced  or  recognized. 

*  M'CvUoch  v.  MaryUmd,  4  Wheat.  316,  405,  406,  436;  Gibbons  v. 
Ogden,  9  Wheat.  1, 210;  Osbiyme  v.  Bank  of  United  States,  9  Wheat.  738; 
Broim  V.  Maryland,  12  Wheat.  419,  448,  449;  WiUson  v.  Blackbird 
Creek  Marsh  Co,,  2  Pet.  245,  251;  The  License  Cases,  5  How.  504, 
573,  574,  579;  SinnoU  v.  Davenport,  22  How.  227;  Pollock  v.  Fanners* 
Loan  &  Trust  Co,,  157  U.  S.  429,  584;  Dams  v.  Elmira  Savings  Bank, 
161  U.  S.  275,  283;  Missouri,  K,  &  T.  R,  Co.  v.  Haber,  169  U.  S. 
613,  625,  626;  Owensboro  National  Bank  v.  Owensboro,  173  U.  S.  664, 
667;  Knowlton  v.  Moore,  178  U.  S.  41,  59;  Plummer  v.  Coler,  178 
U.  S.  115,  117;  Reid  v.  Colorado,  187  U.  S.  137, 151. 


FLAHERTY  v,  HANSON.  525 

215  U.  S.  Opinion  of  the  Ck>uri. 

But  if  the  mere  form  in  which  the  burdens  imposed  by  the 
statute  be  disregarded  and  their  essence  be  considered,  never- 
theless we  are  of  the  opinion  that  the  statute  must  be  held  to  be 
repugnant  to  the  Constitution  of  the  United  States.  This  fol- 
lows, because  it  is  clear  that  in  principle  a  State  may  not  so 
exert  its  police  power  as  to  directly  hamper  or  destroy  a  lawful 
authority  of  the  Government  of  the  United  States.  Here, 
again,  the  doctrine  is  elementary,  and  finds  clear  and  con- 
sistent expression  in  the  cases  previously  cited.  Its  potenti- 
ality, however,  as  applied  to  the  case  in  hand,  is  so  pointedly 
illustrated  by  the  case  of  United  States  v.  Snyder,  149  U.  S.  210, 
that  we  briefly  refer  to  that  decision.  In  that  case  a  C!ircuit 
Court  of  the  United  States  had  refused  to  enforce,  in  favor  of 
the  United  States,  a  lien  upon  real  estate  for  taxes  under  the 
internal  revenue  laws,  on  the  ground  that  the  lien,  or  assess- 
ment for  the  tax,  had  not  been  recorded  in  the  mortgage 
records  for  the  parish  of  Orleans,  where  the  real  estate  in  ques- 
tion was  situated,  as  required  by  the  laws  of  Louisiana,  and 
that  the  proceeding  to  enforce  the  lien  had  not  been  brought 
within  the  period  fixed  by  the  state  law.  The  Circuit  Court, 
therefore,  in  effect,  had  held  that  it  was  in  the  power  of  the 
State  to  burden,  control  or  regulate  the  right  of  the  United 
States  to  assess  and  collect  taxes  under  its  constitutional  power 
of  taxation.  In  deciding  that  this  view  was  unsound  it  was 
said  (p.  214) : 

"The  power  of  taxation  has  always  been  regarded  as  a 
necessary  and  indispensable  incident  of  sovereignty.  A  gov- 
ernment that  cannot  by  self-administered  methods,  collect 
from  its  subjects  the  means  necessary  to  support  and  maintain 
itself  in  the  execution  of  its  functions  is  a  government  merely 
in  name.  If  the  United  States,  proceeding  in  one  of  their  own 
courts,  in  the  collection  of  a  tax  admitted. to  be  legitimate, 
can  be  thwarted  by  the  plea  of  a  state  statute  prescribing  that 
such  a  tax  must  be  assessed  and  recorded  under  state  regula- 
tion, and  limiting  the  time  within  which  such  tax  shall  be  a 
lien,  it  would  follow  that  the  potential  existence  of  the  gov- 


626  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  216  U.  8. 

eminent  of  the  United  States  is  at  the  mercy  of  state  legisla- 
tion. 

"  Moreover,  it  scarcely  seems  necessary  to  look  beyond  the 
Constitution  itself  for  a  decisive  reply  to  the  question  we  are 
now  considering.  The  8th  section  of  the  1st  article  declares 
that  '  the  Congress  shall  have  power  to  lay  and  collect  taxes, 
duties,  imposts  and  excises,  .  .  .  but  all  duties,  imposts 
and  excises  shall  be  imiform  throughout  the  United  States.' 
The  power  to  impose  and  collect  the  public  burthens  is  here 
given  in  terms  as  absolute  as  the  language  affords.  The  pro- 
vision exacting  uniformity  throughout  the  United  States  itself 
imports  a  system  of  assessment  and  collection  under  the  ex- 
clusive control  of  the  general  government.  And  both  the  grant 
of  the  power  and  its  limitation  are  wholly  inconsistent  with  the 
proposition  that  the  States  can  by  legislation  interfere  with 
the  assessment  of  Federal  taxes,  or  set  up  a  limitation  of  time 
within  which  they  must  be  collected." 

Undoubtedly,  as  suggested  by  the  court  below,  there  are  de- 
cisions of  state  courts  holding  that  in  a  proceeding  to  enforce 
a  penalty  or  to  punish  for  a  violation  of  a  state  law  as  to  the 
sale  of  liquor  the  payment  of  the  special  United  States  tax  and 
taking  of  a  receipt  therefor  by  the  defendant  may  be  offered 
in  evidence,  and  creates  a  prima  fade  presumption  that  the 
person  paying  the  tax  and  holding  the  receipt  was  engaged  in 
the  business  of  selling  liquor.  Without  in  anywise  intimating 
an  opinion  as  to  the  soundness  of  the  decisions  thus  referred 
to,  and  assuming  only  for  the  purpose  of  the  argument  their 
correctness,  we  yet  fail  to  see  how  in  any  respect  they  can  be 
considered  persuasive  as  to  the  compatibiUty  of  the  statute 
here  under  consideration  with  the  Constitution  of  the  United 
States. 

Nor  is  there  merit  in  the  contention  that  the  cases  of  AUen 
V.  RUey,  203  U.  S.  347;  Woods  v.  Carl,  203  U.  S.  358,  and 
Ozan  Lumber  Company  v.  Union  County  Bank,  207  U.  S.  251, 
tend  to  support  the  proposition  that  the  statute  in  question 
was  a  valid  exercise  of  the  police  power  of  the  State  and  not  a 


BRILL  V,  WASHINGTON  RY.  &  ELECTRIC  CO.    527 
215  U.  S.  Syllabus. 

direct  burden  upon  the  taxing  power  of  the  Government  of  the 
United  States.  In  the  cases  relied  upon  it  was  but  held  that 
certain  state  statutes  regulating  the  sale  within  a  State  of 
patent  rights  or  patented  articles  were  vaUd  because  but  a 
reasonable  exertion  of  the  police  powers  of  the  State  over  acts 
done  in  the  State,  and  were  hence  not  inconsistent  with  th(^ 
legislation  of  Congress  over  the  subject.  But  that,  as  we  have 
stated,  is  not  the  character  of  the  legislation  here  involved. 
Indeed,  testing  the  provision  of  the  law  under  consideration 
by  the  criterion  of  reasonableness  which  was  applied  in  the 
cases  relied  upon,  it  becomes  manifest  that  the  act  here  in 
question  is  directly  antagonistic  to  the  legislation  of  Congress 
concerning  the  subject  with  which  the  state  statute  deals, 
since  that  statute  adds  onerous  burdens  and  conditions  in  ad- 
dition to.  those  for  which  the  act  of  Congress  provides,  and 
which  burdens  are,  therefore,  inconsistent  with  the  paramount 
right  of  Congress  to  exert,  within  the  limits  of  the  Constitution, 
an  untrammelled  power  of  taxation. 

Reversed  and  remanded. 

The  Chief  Justice,  Mr.  Justice  McKenna  and  Mr.  Jus- 
tice Holmes  dissent. 


■^♦» 


BRILL  i\  WASHINGTON    RAILWAY   AND  ELECTRIC 

COMPANY. 

APPEAL   FROM    THE    COURT   OF   APPEALS   OF  THE   DISTRICT    OF 

COLUMBIA. 

No.  66.    Argued  December  10,  13,  1909.— Decided  January  17,  1910. 

Where  a  decree  to  which  he  is  privy  has  established  the  right  of  a 
manufacturer  to  sell  an  article,  there  is  force  in  the  argument  that 
such  right  should  be  recognized  in  another  suit  against  his  customer 
and  defended  by  him.    Kessler  v.  Eldred,  206  U.  S.  285. 

Devices  used  in  connection  with  steam  railway  cars  are  not  patentable 


528  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

as  new  inventions  when  applied  to  street  railway  cars,  even  Uiough 
a  long  time  may  have  elapsed  between  their  first  use  and  their  ap- 
plication to  street  cars. 

Where  the  claim  is  very  narrow,  as  in  this  case,  there  is  little  room 
for  the  doctrine  of  equivalents. 

30  App.  D.  C.  255,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Francis  Rawle  and  Mr.  Frederick  P,  Fishy  with  whom 
Mr.  MelviUe  Church  was  on  the  brief,  for  appellant. 

Mr.  H.  S.  Duellj  with  whom  Mr.  Charles  H.  Dudl  and  Afr. 
F.  P.  Warfidd  were  on  the  brief,  for  appellee. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  bill  in  equity  to  restrain  the  infringement  of  a 
patent.  The  suit  is  brought  against  a  party  that  is  alleged  to 
have  used  the  patented  device,  but  it  is  defended  by  the  Peck- 
ham  Manufacturing  Company,  the  vendor,  which  is  a  succes- 
sor by  purchase  to  the  Peckham  Motor  Truck  and  Wheel 
Company.  The  principal  claim  now  relied  upon  was  declared 
void  in  North  Jersey  St.  Ry.  Co.  v.  BriU,  134  Fed.  Rep.  580; 
S.  C,  67  C.  C.  A.  380,  reversing  the  decision  of  the  Circuit 
Court,  124  Fed.  Rep.  778, 125  Fed.  Rep.  526,  a  suit  brought  by 
the  same  plaintiff  and  said  to  have  been  defended  by  the 
Peckham  Motor  and  Truck  Company.  (On  the  authority  of 
that  case  a  preliminary  injunction  against  the  present  defend- 
ant was  refused  in  BriU  v.  Peckham  Mfg.  Co.,  135  Fed.  Rep. 
784;  S.  C,  68  C.  C.  A.  486.)  If  the  first  Peckham  Company 
was  privy  to  the  decree  declaring  the  patent  void  there  would 
be  great  force  in  the  argument  that  that  decree  established, 
as  against  the  plaintiff,  the  right  of  the  Peckham  Manufac- 
turing Company  to  make  and  sell  the  patented  article,  and 
that  the  right  ought  to  be  recognized  in  a  suit  against  its 
customer  defended  by  it.   Kessler  v.  Eldred,  206  U.  S.  285,  288, 


BRILL  V.  WASHINGTON  RY.  &  ELECTRIC  CO.  529 
215  U.  S.  Opinion  of  the  Court. 

289.  It  is  unnecessary  to  decide  that  question,  because  the 
formal  proofs  are  wanting,  but  on  the  obvious  tacts  we  should 
be  unwilling  to  come  to  a  different  conclusion  from  that 
reached  in  the  earlier  litigation  and  again  in  the  present  suit 
unless  it  was  impossible  to  avoid  the  result.  With  these  pre- 
liminaries we  proceed  to  the  merits  of  the  case. 

The  present  form  of  car  used  on  the  electric  street  railways 
is  a  long  car  resting  by  pivots  upon  two  four-wheeled  trucks. 
The  plaintiff  makes  a  truck  of  this  sort  and  has  a  parent  and  a 
divisional  patent  for  "  Improvements  in  Car  Trucks  for  Motor 
Propulsion  and  the  Like,"  dated  June  27,  1899,  and  numbered 
respectively  627,898  and  627,900.  The  arrangement  in  actual 
use  may  be  described  as  follows,  nearly  in  the  plaintiff's  words : 
The  side  frames  are  connected  near  the  middle  by  two  parallel 
metal  cross-pieces  or  transoms,  having  space  enough  between 
them  to  allow  another  parallel  piece,  called  the  bolster,  to 
move  vertically,  occupying  the  space  between  with  but  slight 
play.  The  car  body  rests  on  a  pivot  in  the  middle  of  the 
bolster.  The  ends  of  the  bolster  rest  on  the  top  of  semi- 
elliptic  springs  parallel  to  and  below  the  sides  of  the  truck. 
The  ends  of  the  springs  in  their  turn  rest  on  two  spring  links 
hanging  from  the  sides  of  the  truck  near  the  axles.  More 
specifically  they  are  supported  on  the  bottom  of  metal  bands 
or  stirrups  which  surround  and  hang  by  their  tops  on  spiral 
springs  each  of  which  is  attached  underneath  to  a  metal  bolt 
running  up  through  its  middle  and  connected  at  the  top  with 
the  frame  of  the  truck  by  a  ball  and  socket-joint.  That  is  to 
say  the  pin  passes  up  through  the  frame,  in  which  is  a  conoidal 
aperture  to  give  it  play  in  all  directions,  and  the  head  of  the 
pin  is  hemispherical  seated  in  a  like  recess  in  the  frame. 

The  claims  relied  upon  are  the  following :  In  number  627,898 
the  parent  patent, 

"  13.  The  combination  in  a  car-truck,  of  the  side  frames,  the 
semi-elliptic  springs  movably  and  resiliently  suspended  from 
the  side  frames,  and  a  bolster  secured  to  said  springs,  sub- 
stantially as  described.'' 
VOL.  ccxv — 34 


530  OCTOBER  TERM,  1909. 

Opinion  of  the  Ck>urt.  215  U.  S. 

"81.  The  combination  in  a  car-truck,  of  the  side  frames,  the 
semi-elliptic  springs,  a  cross-bolster  resting  on  the  semi- 
elliptic  springs,  links,  and  springs  combined  with  said  links, 
said  links  deriving  their  support  from  the  side  frames  and  con- 
necting the  ends  of  the  semi-elliptic  springs  with  the  side 
frames,  substantially  as  described." 

In  627,900,  the  divisional  patent, 

*'  13.  In  a  car-truck,  the  combination  with  the  side  frames, 
of  the  links  comprising  bolts  pivoted  between  their  ends,  said 
links  being  pivotally  suspended  from  the  side  frames,  longi- 
tudinally-disposed semi-elliptic  springs  secured  to  the  lower- 
end  of  said  bolts,  a  cress-bolster  resting  on  said  springs,  and 
further  springs  included  in  the  link  suspension  of  said  semi- 
elliptic  springs,  substantially  as  described. 

"  14.  In  a  car-truck,  the  combination  with  the  side  frames, 
of  the  cross-bolster  suspended  below  the  side  frames  by  semi- 
elliptic  springs  and  pivotal  links,  said  links  comprising  a 
plurality  of  sections  pivotally  secured  together,  and  further 
springs  combined  with  said  Unks  to  elastically  suspend  said 
semi-elliptic  springs  from  the  side  frames,  substantially  as  de- 
scribed. 

"  15.  In  a  car-truck,  the  combination  with  the  side  frames, 
of  the  cross-bolster  suspended  below  the  side  frames  by  semi- 
elliptic  springs  and  articulated  and  pivotal  links,  said  links 
comprising  a  plurality  of  sections  pivotally  secured  together, 
and  spiral  springs  about  and  combined  with  said  links  to 
elastically  suspend  said  semi-elliptic  springs  from  the  side 
frames,  substantially  as  described." 

"17.  The  combination  in  a  car-truck  having  an  upper 
chord,  of  the  longitudinally-disposed  semi-elliptic  springs,  a 
transverse  bolster  supported  upon  said  springs,  Unks  depend- 
ing from  and  flexibly  supported  on  said  upper  chord  and  pass- 
ing through  enlarged  apertures  therein,  said  links  being 
articulated  between  their  ends,  the  ends  of  the  semi-elliptic 
springs  being  supported  upon  the  lower  articulation  of  said 
links,  substantially  as  described." 


BRILL  V.  WASHINGTON  RY.  &  ELECTRIC  CO.  531 
215  U.  S.  Opinion  of  the  Court. 

The  parent  patent  contains  the  following  disclaimer : 

"The  location  of  the  semi-elliptic  springs  outside  of  the 
wheel-gage  on  each  side  of  the  truck,  together  with  the  location 
of  the  links  for  supporting  the  semi-eUiptics  closely  adjacent 
to  the  axle-boxes,  and  the  swinging  of  said  springs  from  the 
truck-frame  from  such  points  gives  a  better  support  for  the 
car-body  than  does  the  usual  link-hung  bolster  supported  from 
the  truck-transoms  within  the  wheel-gage.  These  general 
features  of  construction,  however,  are  embraced  in  an  applica- 
tion filed  by  Samuel  M.  Curwen  and  myself  on  the  3d  day  of 
November,  1896,  Serial  No.  610,902,  and  therefore  I  do  not 
claim  the  same  herein." 

The  answer  denies  the  validity  of  the  patents,  setting  up  a 
large  number  of  earlier  ones,  and  also  denies  infringement. 
There  was  a  trial  in  the  Supreme  Court  of  the  District,  upon 
which  a  decree  was  rendered  dismissing  the  bill.  The  decree 
was  affirmed  by  the  Court  of  Appeals,  30  App.  D.  C.  255,  and 
an  appeal  was  taken  to  this  court. 

It  is  difficult  to  put  one's  finger  with  certainty  upon  what 
the  plaintiff  claims.  It  certainly  is  not  the  total  combination 
of  a  successful  truck.  Mr.  Brill,  the  inventor  and  the  plaintiff's 
assignor,  is  pictured  as  playing  a  large  part  in  the  develop- 
ment of  street  railway  trucks,  but  whether  that  be  true  or  not, 
his  share  in  the  invention  of  the  truck  that  we  have  described, 
so  far  as  the  present  patent  at  least  is  concerned,  must  be  at 
best  but  very  small.  It  is  insisted,  to  be  sure,  that  the  case  is 
not  affected  by  inventions  for  use  with  steam  railroad  cars  be- 
cause of  the  different  requirements  upon  street  roads.  Cars 
for  the  latter  use  must  be  low  hung  to  make  getting  in  and  out 
easy,  must  accommodate  the  motors  hung  upon  the  axles, 
must  be  adapted  to  short  curves  and  so  forth.  But  these 
differences  are  not  of  universal  effect ;  indeed  this  patent  is  not 
confined  to  street  cars.  The  suspension  of  the  car  body  upon  a 
semi-elliptic  spring  hung  from  the  side  frame  of  the  truck  by  a 
jointed  hanger,  with  most  of  the  characteristics  of  the  present 
patent,  as  disclosed  in  a  patent  to  Thyng  in  1845,  was  obvi- 


532  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

ously  as  available  for  street  as  for  steam  railways,  and  the  use 
of  these  features  by  Brill  was  not  a  patentable  invention.  The 
use,  on  the  modern  long  car,  of  two  four-wheeled  pivotal  trucks 
with  a  short  wheel  base  and  wheels  of  equal  diameter,  which 
support  the  car  body  by  a  pivot  on  a  bolster  between  the  axles, 
resting  on  semi-elliptic  springs,  was  not  peculiar  to  Brill. 
It  was  described  in  a  patent  to  Taylor,  October  31,  1895, 
No.  507,855.  BrilFs  specification  disclaims  at  the  outset  the 
general  features  of  the  truck  it  describes.  Indeed  it  hardly  is 
denied  that  every  clement  in  the  combination  was  well  known 
in  the  construction  of  railway  cars. 

We  are  not  dealing  with  a  new  type  of  trucks,  but  with  cer- 
tain features  only.  At  the  argument  it  was  admitted  that  the 
plaintiflf's  case  must  stand  or  fall  on  claim  13  of  No.  627,898. 
In  that  claim  the  only  possible  element  of  novelty  is  the  mode 
in  which  the  semi-elliptic  springs  are  suspended  from  the  side 
frames.  In  practice  the  links  are  elastic  and  the  pins  on  which 
the  whole  combination  hangs  have  a  universal  ball  and  socket 
movement,  although  the  claim  only  says  'movably  and 
resiliently  suspended  .  .  .  substantially  as  described.' 
Neither  'movably'  nor  'resiliently'  indicates  the  ball  and 
socket  arrangement,  but  it  is  described  in  the  specification 
and  we  give  the  plaintiff  the  benefit  of  the  doubt.  We  agree, 
however,  with  the  CJircuit  Court  of  Appeals  that  the  substitu- 
tion of  a  ball  and  socket  movement  for  the  movement  in  one 
direction  of  the  Thyng  link,  coupled  as  it  was  with  a  slight 
longitudinal  play,  required  a  minimum  of  invention.  A  link 
having  universal  movement  was  patented  by  Beach  in  1876. 
The  plaintiff's  witness,  Akarman,  says  that  there  always  has 
been  provision  made  for  lateral  and  longitudinal  motion  in 
every  well-constructed  truck.  Spring  links  to  support  semi- 
elliptic  springs  were  old ;  it  is  unnecessary  to  recite  the  patents 
in  which  they  appear.  The  mention  of  'the  usual  link  hung 
bolster'  in  the  disclaimer  indicates  the  indisputable  fact. 
We  also  agree  with  the  other  court  that  the  disclaimer  in  favor 
of  Brill  and  Curwen  is  a  solemn  admission  of  the  priority  of  the 


MANKIN  V.  LUDOWICI-CELADON  CO.  533 

215  U.  S.  Syllabus. 

devices  claimed  by  them.  It  certainly  covers  the  collocation 
of  the  spring  links  and  semi-elliptic  springs.  One  of  the  claims 
of  Brill  and  Curwen  is,  "  12.  The  combination  in  a  car  truck 
of  the  side  frames,  the  equalizing-bars  movably  and  resiliently 
suspended  from  the  side  frames,  and  a  bolster  supported  on 
said  equalizing-bars,  substantially  as  described."  It  is  said 
that  the  Brill  patent  did  not  follow  the  Thyng  invention  for 
more  than  fifty  years.  The  answer  is  that  for  most  of  that 
time  it  was  not  wanted.  Very  soon  after  the  change  in  street 
railway  travel  required  it  it  came. 

If  the  plaintiff's  claim  could  be  sustained,  which  we  cannot 
admit,  it  would  be  confined  to  the  specific  form  of  Hnk  de- 
scribed. There  would  be  little  room  for  the  doctrine  of 
equivalents.  The  defendant's  device  does  not  use  a  ball  and 
socket  but  uses  a  rigid  link  supported  by  a  relatively  unyield- 
ing spiral  spring  in  the  frame  of  the  truck,  and  does  not  in- 
fringe the  very  narrow  claim  which  is  the  most  that  in  any 

view  could  be  allowed. 

Decree  affirmed. 

Mr.  Justice  McKenna  dissents. 


MANKIN  V.  UNITED  STATES  FOR  THE  USE  OF 
LUDOWICI-CELADON  COMPANY. 

ERROR    TO    THE   CIRCUIT   COURT   OF   APPEALS    FOR  THE  FIFTH 

CIRCUIT. 

No.  167.    Submitted  January  7,  1910. — ^Decided  January  17,  1910. 

Under  the  labor  and  material  law  of  February  24,  1905,  c.  778,  33 
Stat.  811,  amending  the  act  of  August  13, 1894,  c.  280,  28  Stat.  278, 
indemnity  is  provided  for  persons  furnishing  labor  and  materials 
to  a  subcontractor  as  well  as  to  the  contractor  in  chief  for  the  con- 
struction of  a  public  building. 

The  indemnity  extends  to  the  full  amount  furnished  notwithstanding 
the  contractor  may  have  already  paid  the  subcontractor  in  full  or 


534  OCTOBER  TERM,  1909. 

Argument  for  Plaintifif  in  Error.  215  U.  S. 

in  part.  Provisions  in  state  statutes,  limiting  recoveiy  against  con- 
tractor to  amount  remaining  unpaid  to  subcontractor,  do  not  affect 
suits  under  the  Federal  statute  which  contains  no  such  provisions. 

The  decision  in  Hill  v.  American  Surety  Co,,  200  U.  S.  197,  in  regard 
to  claims  against  subcontractors  under  the  act  of  1894,  followed  as 
to  such  claims  under  the  statute  as  amended  in  1905. 

158  Fed.  Rep.  1021,  affirmed. 

The  facts,  which  involve  the  construction  of  the  Federal 
labor  and  material  act  of  February  24,  1905,  c.  778,  33  Stat. 
811,  are  stated  in  the  opinion. 

Mr.  C.  V.  Meredith,  Mr,  J.  Jordan  Leake,  Mr,  T,  C.  Catchings 
and  Mr,  0,  W.  Catchings  for  plaintiff  in  error: 

The  statute  must  be  strictly  construed  as  a  mechanic's  lien 
statute  and  as  such  does  not,  as  amended  in  1905,  inure  to  the 
benefit  of  subcontractors.  The  act  as  amended  differs  in  this 
respect  from  the  statute  as  construed  in  Hill  v.  Am,  Surety  Co,, 
200  U.  S.  197.  No  matter  how  meritorious  his  service  the 
statute  does  not  protect  one  who  is  not  clearly  within  it. 
Phillips  on  Mech.  Liens,  2d  ed.,  §§36,  47  et  seq.;  Wood  v. 
Donaldson,  17  Wend.  550;  Donaldson  v.  Wood,  22  Wend.  395; 
Boisot,  Mech.  Liens,  §§  246  et  seq,;  McGuire  v.  Ohio  R.  R.  Co., 
33  W.  Va.  63. 

Under  the  statute  as  amended  the  contractor  and  surety 
company  are  not  and  should  not  be  required  to  pay  twice,  and 
the  material  men  are  only  entitled  to  recover  the  amount  re- 
maining unpaid  to  the  subcontractor  which  in  this  case  is  for 
less  than  the  amounts  claimed  by  the  material  men  and 
awarded  by  the  court  below. 

Where  the  owner  is  compelled  to  pay  twice  the  statute  is 
highly  penal  and  must  be  construed  strictly  against  one  seek- 
ing that  result.  West  Lumber  Co,  v.  Knapp,  122  California,  81 ; 
Hampton  v.  Christenson,  84  Pac.  Rep.  200;  Alderman  v.  Hart- 
ford Co,,  66  Connecticut,  47;  Nixon  v.  Cydon  Lodge,  56  Kansas, 
298;  Dunn  v.  Rankin,  27  Ohio,  132;  Morrison  v.  Whaiey,  16 
R.  I.  715. 


MANKIN  V,  LUDOWICI-CELADON  CO.  536 

215  U.  S.  Opinion  of  the  Court. 

The  New  Jersey  statute  has  been  construed  as  not  requiring 
payment  beyond  the  amount  due  the  subcontractor.  Garrison 
V.  BoriOj  47  Atl.  Rep.  1060;  and  see  also  as  to  New  York  rule, 
Brainard  v.  Kings  County,  84  Hun,  290,  afif'd  155  N.  Y.  538; 
Phillips,  Mech.  Liens,  2d  ed.,  §  61,  citing  Renton  v.  CorUey,  49 
California,  188,  and  McKnight  v.  Washington,  8  W.  Va.  666; 
Stout  V.  Golden,  9  W.  Va.  231;  Mclntire  v.  Barnes,  4  Colorado, 
288;  Boisot,  Mech.  Liens,  §  255;  Wadsvxjrth  v.  Hodge,  88  Ala- 
bama, 500. 

If  the  rule  were  otherwise  a  contractor  might  have  to  pay 
those  supplying  materials  to  the  subcontractor  more  than 
he  agreed  to  pay  the  subcontractor  himself.  McMurray  v. 
Brown,  91 U.  S.  256, 266 ;  Hunler  v.  Truckee  Lodge,  14  Nebraska, 
24,  41;  Fullerton  Lumber  Co,  v.  Osbom,  72  Iowa,  472;  Wolf  v. 
Penna.  R,  R.  Co,,  29  Pa.  Sup.  Ct.  439;  Knetty  v.  Howarth,  208 
Pa.  St.  487;  Mullikeir  v.  Harrison,  44  S.  E.  Rep.  42Q;Gridley  v. 
Sumner,  43  Connecticut,  14;  Lumber  Co,  v.  Smith,  35  So.  Rep. 
693;  Merriott  v.  Crane  Co,,  126  111.  App.  337,  343;  Am,  Surety 
Co,  V.  United  States,  127  Alabama,  349;  General  Supply  Co,  v. 
Hunn,  126  Georgia,  615;  Vandenberg  v.  Walton,  92  Pac.  Rep. 
149;  see  Digest  of  laws  of  various  States  in  Alexander's  Lien 
Laws;  Southeastern  States,  Alabama,  p.  35;  Florida,  p.  114; 
Mississippi,  p.  435;  North  Carolina,  p.  474;  South  Carolina, 
p.  525;  Virginia,  p.  694. 

Mr,  C.  H,  Alexander,  Mr.  W,  C.  Bowman,  Mr,  Richard  F. 
Reed  and  Mr,  Gerard  Brandon  for  defendants  in  error. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Circuit  Court  of  Appeals  for  the 
Rfth  Circuit,  wherein  a  judgment  of  the  Circuit  Court  of  the 
United  States  for  the  Southern  District  of  Mississippi  in  favor 
of  the  defendants  in  error  was  affirmed.  The  facts  are :  The 
Mankin  Construction  Company  on  February  27,  1905,  entered 
into  a  contract  with  the  Secretary  of  the  Treasury  for  the  con- 


1 


536  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

struction  of  a  certain  post-office  building  in  the  city  of  Natchez, 
Mississippi,  and  gave  bond  under  the  act  of  February  24, 1905, 
(33  Stat.  811,  c.  778),  amending  the  act  of  August  13,  1894, 
(28  Stat.  278,  c.  280).  This  bond  was  conditioned  that  the 
Mankin  Construction  Company  should  "  promptly  make  pay- 
ment to  all  persons  supplying  them  labor  or  materials  in  the 
prosecution  of  the  work  contemplated  by  said  contract." 
Upon  this  bond  the  Title,  Guaranty  &  Trust  Company  of 
Scranton,  Pa.,  was  surety. 

The  Mankin  Construction  Company  on  April  29,  1905,  en- 
tered into  a  written  contract  with  one  W.  E.  Smythe  as  sub- 
contractor, by  the  terms  of  which  Smythe  agreed  to  furnish 
certain  plumbing,  gasfitting,  sheet-metal,  tile  roofing,  etc.,  to 
be  used  in  the  construction  and  erection  of  the  post-office 
building.  The  building  was  completed  about  July  12,  1906, 
was  accepted  by  the  Government,,  and  payment  therefor  was 
made  to  the  Mankin  Construction  Company  in  accordance  with 
the  terms  of  the  contract. 

The  defendants  in  error,  the  Ludowici-Celadon  Company, 
the  Nelson  Manufacturing  Company,  and  the  J.  L.  Mott  Iron 
Works,  respectively,  sold  and  delivered  to  Smythe,  the  sub- 
contractor, certain  materials  which  he  used  in  the  construction 
of  the  post-office  building,  as  required  by  the  original  contract. 
Smythe  failed  to  make  full  payment  on  account  of  such  pur- 
chases, and  no  suit  having  been  brought  by  the  United  States 
under  the  act  of  Congress  (33  Stat.  811),  within  six  months, 
affidavit  was  made  by  the  Ludowici-Celadon  Company  that  it 
had  supplied  labor  and  material  for  the  prosecution  of  the 
work  of  constructing  the  post-office  building;  and  it  was  fur- 
nished with  a  copy  of  the  contract  and  bond,  as  required  by 
the  act,  and  thereupon  instituted  suit  in  the  name  of  the 
United  States  in  the  United  States  Circuit  Court  for  the 
Southern  District  of  Mississippi  against  the  Mankin  Con- 
struction Company  and  its  surety. 

The  Nelson  Manufacturing  Company  and  the  J.  L.  Mott 
Iron  Works  intervened  in  the  action,  and  claimed  the  right 


MANKIN  V.  LUDOWICI-CELADON  CO.  537 

216  U.  S.  Opinion  of  the  Court. 

also  to  recover  on  account  of  the  materials  furnished  by  them 
respectively.  There  was  a  judgment  upon  the  bond  in  favor 
of  the  claimants.  It  also  appears  that  the  Mankin  Construc- 
tion Company  had  paid  Smythe,  the  subcontractor,  the 
amount  due  him  under  the  contract,  less  $644.57,  before  re- 
ceiving any  notice  from  either  of  the  claimants  of  their  re- 
spective claims  against  Smythe.  The  judgment  upon  the 
bond  was  in  favor  of  the  United  States  for  the  use  of  the 
Ludowici-Celadon  Company  in  the  sum  of  $1,217.78,  for  the 
use  of  the  Mott  Iron  Works  in  the  sum  of  $709.97,  for  the  use 
of  the  Nelson  Manufacturing  Company  in  the  sum  of  $2,129.47. 
The  amount  due  upon  the  accounts  not  being  disputed,  the 
court  instructed  the  jury  to  find  for  the  claimants. 

Upon  writ  of  error  to  the  Circuit  Court  of  Appeals  for  the 
Fifth  Circuit  that  court  affirmed  the  judgment  of  the  Circuit 
Court  upon  the  authority  of  Hill  v.  The  American  Surety  Co., 
200  U.  S.  197.  In  the  Hill  case  this  court  held  that  one  who 
furnished  labor  or  materials  in  the  carrying  out  of  a  contract, 
for  public  works,  although  such  materials  were  furnished  to  a 
subcontractor,  to  whom  a  part  of  the  work  had  been  let,  could 
recover  upon  a  bond  given  under  the  act  of  August  13,  1894 
(28  Stat.  278,  c.  280).  In  the  HiU  case  it  was  held  that,  con- 
struing the  bond  in  the  light  of  the  statute,  and  the  purpose  of 
Congress  to  provide  security  for  payment  for  labor  and  ma- 
terial going  into  the  construction  of  a  public  building,  it  was 
intended  thereby  to  provide  indemnity  for  a  person  or  persons 
who  furnished  labor  or  materials  to  the  subcontractor,  thereby 
enabling  the  contractor  to  meet  his  engagement  to  supply  the 
material  and  labor  necessary  to  the  construction  of  a  public 
building. 

The  present  action  accrued  after  the  passage  of  the  statute 
of  February  24,  1905,  amending  the  act  of  August  13,  1894, 
in  which  original  act  a  right  of  action  was  given  in  the  name  of 
the  United  States  for  the  use  and  benefit  of  the  persons  supply- 
ing the  labor  or  materials  in  the  prosecution  of  the  work  pro- 
vided for  in  the  contract,  and  requiring  a  bond  for  the  benefit 


538  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

of  such  persons.  In  that  act  there  was  no  limitation  upon  the 
number  of  actions  which  might  be  brought,  nor  was  there  any 
preference  given  to  the  United  States  in  a  recovery  upon  the 
bond.  In  the  amended  act  a  single  action  was  provided  for, 
and  priority  was  given  to  the  claim  and  judgment  of  the 
United  States.  In  such  suit  any  person  or  company  who  had 
furnished  labor  or  material  used  in  the  construction  or  repair 
of  any  public  building  was  allowed  to  intervene  in  the  suit  by 
the  United  States  on  the  bond,  and  to  have  their  rights  and 
claims  adjudicated;  and  it  was  further  provided  that  if  no  suit 
should  be  brought  by  the  United  States  within  six  months 
of  the  completion  and  final  settlement  of  the  contract  then  the 
person  or  persons  supplying  the  labor  or  materials  should, 
upon  filing  an  affidavit  in  the  Department  under  the  direction 
of  which  the  work  had  been  done,  or  the  materials  furnished, 
be  furnished  with  a  certified  copy  of  the  contract  and  bond, 
and  might  thereupon  bring  an  action  in  the  name  of  the  United 
States  in  the  Circuit  Court  of  the  United  States  in  the  district 
where  the  contract  was  performed  and  executed.  There  are 
other  provisions  looking  to  the  distribution  of  the  recovery 
upon  the  bond,  and  providing  for  bringing  all  creditors  into  the 
single  suit  which  is  authorized  to  be  instituted. 

In  respect  to  the  condition  of  the  bond  required  to  be  given, 
the  language  of  the  amended  act  is  precisely  the  same  as  that 
contained  in  the  act  of  August  13,  1894,  and  the  condition  is 
that  "such  contriactor  or  contractors  shall  promptly  make 
payments  to  all  persons  supplying  him  or  them  with  labor  and 
materials  in  the  prosecution  of  the  work  provided  fpr  in  such 
contract." 

It  is  the  contention  of  the  plaintiff  in  error  that  the  act  of 
February  24,  1905,  differs  from  the  act  of  August  13,  1894,  in 
that  a  copy  of  the  contract  and  bond  is  to  be  furnished  for  the 
purpose  of  suit  to  the  "person  or  persons  supplying  the  con- 
tractor with  labor  and  materials,"  and  upon  furnishing  an 
affidavit  to  the  Department  under  whose  direction  the  work 
has  been  prosecuted,  that  the  labor  and  materials  for  the 


MANKIN  V,  LUDOWICI-CELADON  CO.  539 

215  U.  S.  Opinion  of  the  Court. 

prosecution  of  said  work  has  been  supplied,  but  payment  for 
which*has  not  been  made,  whereas,  in  the  act  of  August  13, 
1894,  it  is  provided  that  any  person  or  persons  making  an  ap- 
plication therefor,  and  furnishing  an  affidavit  to  the  Depart- 
ment that  the  labor  and  materials  for  the  prosecution  of  such 
work  had  been  supplied  by  him  or  them,  payment  for  which 
had  not  been  made,  shall  have  a  certified  copy  of  the  contract 
and  bond  for  the  purpose  of  bringing  suit  thereon. 

In  both  statutes  a  copy  of  the  contract  and  bond  is  to  be 
furnished  upon  an  affidavit  that  labor  and  materials  for  the 
prosecution  of  the  work  has  been  supplied  by  the  persons  ap- 
plying for  such  copy.  In  the  amended  statute  it  is  provided 
that  if  the  action  is  not  instituted  by  the  United  States  within 
six  months,  then  the  person  or  persons  supplying  the  con- 
tractor with  labor  and  materials,  and  furnishing  the  affidavit 
that  the  same  were  supplied  for  the  prosecution  of  such  work, 
shall  have  a  certified  copy  of  the  contract  and  bond  for  the 
purposes  of  the  suit.  The  additional  phrase  used  in  this  con- 
nection, "  the  person  or  persons  supplying  the  contractor  with 
labor  and  materials,"  it  is  contended,  shows  that  only  those 
who  furnish  labor  and  materials  directly  to  the  contractor  come 
within  the  benefit  of  the  act.  We  cannot  agree  with  this  con- 
tention. The  phrase,  "  person  or  persons  supplying  the  con- 
tractor with  labor  and  materials,"  are  the  words  embodied  in 
both  statutes  alike  in  the  requirement  of  a  bond  for  their 
benefit.  In  the  Hill  case  it  was  distinctly  held  that  "  persons 
supplying  the  contractor  with  labor  and  materials"  included 
not  only  the  subcontractor,  but  any  one  who  furnished  labor 
and  materials  to  the  subcontractor  for  carrying  out  the  work 
contracted  for.  There  is  nothing  in  the  provision  as  to  who 
shall  have  a  copy  of  the  bond  for  the  purpose  of  suit  which 
changes  or  limits  the  obligation  of  the  bond  under  identical 
requirements  in  both  statutes,  alike  embracing,  as  construed 
in  the  Hill  case,  persons  furnishing  labor  and  materials  to  a 
subcontractor. 

As  to  the  other  point,  that  the  Mankin  Construction  Com- 


540  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

pany  had  paid  to  Smythe,  the  subcontractor,  the  amount  due 
him,  except  the  sum  of  $644.57,  before  receiving  notice  of  the 
claims  of  the  outstanding  debts  recovered  in  this  case,  there  is 
no  provision  in  the  statute  that  notice  shall  be  given  to  the 
contractor  of  claims  against  the  subcontractor  and  limiting 
the  recovery  to  the  amount  unpaid  at  the  time  of  such  notice. 
Such  provision  is  found  in  some  of  the  state  statutes,  and  is 
made  a  condition  of  recovery  in  some  of  the  mechanics'  lien 
acts ;  but  this  case  is  controlled  by  the  Federal  act  under  con- 
sideration and  the  obligation  of  the  bond,  which  requires  pay- 
ment to  all  persons  suppljdng  labor  and  material  in  the  prose- 
cution of  the  work  contemplated  by  the  contract. 

As  was  said  in  the  HiU  case,  the  contractor  can  protect  him- 
self by  requiring  a  bond  securing  him  against  liability  on  ac- 
count of  engagements  of  the  subcontractor  with  persons  who 
furnish  labor  and  material  upon  his  order.  Indeed,  the  present 
contract  contained,  as  the  record  shows,  a  provision  that  the 
general  contractor  reserved  the  right  to  require  a  full  release 
from  all  claims  for  which  he  had  become  liable  for  materials 
furnished  to,  or  work  done  for,  the  subcontractor,  on  account 
of  materials  and  work  required  by  the  contract,  with  the  right 
to  withhold  any  amount  due  to  the  subcontractor  until  such 
release  should  be  furnished. 

We  agree  with  the  Circuit  Court  of  Appeals  that  this  case  is 
ruled  by  the  decision  made  in  HiU  v.  American  Surety  Comn 
pany,  mjyra.  The  judgment  of  the  Circuit  Court  of  Appeals, 
affirming  the  judgment  of  the  Circuit  Court,  is,  therefore. 

Affirmed. 


OLD  NICK  WILLIAMS  CO.  v.  UNITED  STATES.  541 
215  U.  S.  Statement  of  the  Case. 


OLD  NICK  WILLIAMS  COMPANY  v.  UNITED  STATES. 

CEHTIORARI  TO  THE   CIRCUIT  COURT   OF  APPEALS   FOR  THE 

FOURTH  CIRCUIT. 

No.  26.    Argued  November  9, 10, 1909.— Decided  January  24, 1910. 

A  writ  of  error  is  not  actually  brought  until  filed  in  the  court  which 
rendered  the  judgment,  and  the  same  rule  is  applicable  to  appeals. 
Credit  Company  v.  Arkansas  Central  Railway y  128  U.  S.  261. 

The  statutory  time  for  taking  appeals  from  one  Federal  court  to  an- 
other is  prescribed  by  act  of  Congress  and  must  be  calculated  accord- 
ingly; it  cannot  be  extended  by  order  of  the  court. 

Assignment  of  errors  does  not  require  the  previous  settlement  of  the 
bill  of  exceptions,  and  failure  to  file  the  writ  within  the  statutory 
time  is  not  excused  because  there  was  delay  on  the  part  of  the  trial 
judge  in  settling  the  bill. 

A.s8ignment  of  errors  is  not  a  jurisdictional  requirement;  and,  although 
by  the  rule  errors  not  assigned  are  disregarded,  the  court  at  its  op- 
tion may  notice  a  plain  error  not  assigned  or  specified. 

152  Fed.  Rep.  925,  affirmed. 

This  was  an  indictment  in  the  District  Court  of  the  United 
States  for  the  Western  District  of  North  Carolina  against  the 
Old  Nick  Williams  Company,  a  corporation  which  was  au- 
thorized to  carry  on  the  business  of  a  rectifier,  and  which  was 
convicted  of  violating  the  second  paragraph  of  §  3317  of  the 
Revised  Statutes  by  the  verdict  of  a  jury  finding  it  guilty  of 
carrying  on  the  business  of  a  rectifier  with  intent  to  defraud  the 
United  States  of  the  tax  on  the  spirits  rectified  by  it.  The 
verdict  was  rendered  November  28,  1905,  and  motions  to  set 
aside  the  verdict  and  for  new  trial  and  in  arrest  of  judgment 
were  severally  made  and  overruled,  and  thereupon  judgment 
was  entered  on  that  day  sentencing  defendant  to  pay  a  fine  of 
$5,000  and  be  taxed  with  the  costs.  On  the  same  day  it  was 
ordered  that  the  defendant  have  ninety  days  to  prepare  its  bill 
of  exceptions,  and  that  the  attorney  for  the  United  States  have 


542  OCTOBER  TERM,  1909. 

Statement  of  the  Gaae.  215  U.  S. 

thirty  days,  after  being  served  with  the  defendant's  bill  of  ex- 
ceptions, to  make  objections  thereto,  and  that  the  court  would 
settle  the  bill  of  exceptions  upon  ten  days'  notice  to  the  at- 
torneys of  the  parties,  and  that  when  filed  the  bill  of  exceptions 
should  be  deemed  as  made  in  ample  time. 

January  17, 1906,  by  consent  of  the  parties,  the  court  by  its 
order  further  extended  the  time  for  preparing  and  filing  de- 
fendant's bill  of  exceptions  to  March  15, 1906,  and  afterwards 
extended  the  time  to  April  1 .  On  July  27, 1906,  the  court,  over 
the  objection  of  the  attorney  for  the  United  States,  made  an 
order  which  recited  that  defendant  had  filed  with  the  clerk  its 
bill  of  exceptions,  to  which  the  United  States  attorney  had 
filed  certain  objections  and  proposed  amendments,  so  that  the 
bill  of  exceptions  had  not  been  settled  and  signed  by  the  court 
within  six  months  from  the  date  of  the  entry  of  the  judgment, 
and  the  court,  being  of  opinion  that  defendant  was  entitled, 
under  the  circumstances,  to  have  the  bill  of  exceptions  settled 
and  a  writ  of  error  and  citation  issued  and  served  nunc  pro 
tunc  as  within  the  time  required  by  law,  directed  that  the  at- 
torneys should  appear  before  him  August  7, 1906,  and  have  the 
bill  of  exceptions  settled  and  signed  by  the  court,  and  further 
ordered  that  when  the  bill  of  exceptions  was  settled  and  signed 
and  after  a  petition  for  a  writ  of  error  and  assignments  of  error 
had  been  filed  by  defendant,  the  writ  of  error  and  citation  in 
due  form  should  be  issued  and  served,  all  to  bear  date  as  of  the 
fifteenth  of  April,  1906,  that  being  the  date  on  which  the  de- 
fendant filed  its  proposed  bill  of  exceptions  with  the  clerk,  and 
which  was  within  six  months  from  the  entry  of  the  judgment. 
Thereafter,  on  September  12,  1906,  defendant,  having  pre- 
sented its  petition  for  the  allowance  of  a  writ  of  error  and  its 
assignment  of  errors,  the  court  signed  an  order  allowing  the 
writ  of  error  and  directing  that  the  writ  of  error  and  citation 
when  issued  bear  date  April  15,  1906.  Thereupon  the  writ  of 
error  was  issued  on  September  12,  1906,  as  of  April  15.  The 
attorney  for  the  United  States  moved  to  dismiss  the  writ  of 
error  because  not  sued  out  within  six  months  after  the  entry  of 


OLD  NICK  WILLIAMS  CO.  v.  UNITED  STATES.  543 
215  U.  S.  Opinion  of  the  Court. 

the  judgment.  The  statute  restricting  the  time  for  writs  of 
error  in  such  cases  is  §  11  of  the  act  of  Congress  of  March  3, 
1891  (26  Stat.  826,  829  c.  517),  and  reads: 

"Sec.  11.  That  no  appeal  or  writ  of  error  by  which  any 
order,  judgment,  or  decree  may  be  reviewed  in  the  circuit 
courts  of  appeals  under  the  provisions  of  this  act  shall  be  taken 
or  sued  out  except  within  six  months  after  the  entry  of  the  or- 
der, judgment,  or  decree  sought  to  be  reviewed." 

The  writ  was  dismissed  for  the  reasons  given  in  the  opinion 
by  Morris,  J.,  reported  in  152  Fed.  Rep.  925. 

Mr.  Charles  A.  Moore,  with  whom  Mr.  WHliam  P.  Bynum 
was  on  the  brief,  for  petitioner. 

Mr.  Assistant  Attorney  General  Fowler  for  the  United  States. 

Mr.  Chief  Justice  Fuller,  after  making  the  foregoing 
statement,  delivered  the  opinion  of  the  court. 

The  rule  has  long  been  settled  that  "  a  writ  of  error  is  not 
brought,  in  the  legal  meaning  of  the  term,  until  it  is  filed  in  the 
court  which  rendered  the  judgment.  It  is  the  filing  of  the  writ 
that  removes  the  record  from  the  inferior  to  the  appellate 
court,  and  the  period  of  limitation  prescribed  by  the  act  of 
Congress  must  be  calculated  accordingly.''  Taney,  C.  J.,  in 
Brooks  V.  N orris  J  11  How.  204;  PoUeys  v.  Black  River  Cowr 
pany,  113  U.  S.  81;  Credit  Company  v.  Arkansas  Central  Rail- 
way, 128  U.  S.  258;  Farrar  v.  Churchill,  135  U.  S.  609;  Conboy 
V.  Bank,  203  U.  S.  141. 

The  same  rule  is  applicable  to  appeals  as  to  writs  of  error. 
Section  1012,  Revised  Statutes.  As  Mr.  Justice  Bradley  said 
in  Credit  Company  v.  Arkansas  Central  Railway,  128  U.  S.  261 : 

*'  An  appeal  cannot  be  said  to  be  *  taken '  any  more  than  a 
writ  of  error  can  be  said  to  be '  brought '  until  it  is,  in  some  way, 
presented  to  the  court  which  made  the  decree  appealed  from, 
thereby  putting  an  end  ta  its  jurisdiction  over  the  cause,  and 
making  it  its  duty  to  send  it  to  the  appellate  court.'' 


544  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215 17.  S. 

There  the  appeal  was  allowed  by  Mr.  Justice  Miller  on  the 
last  day  on  which  an  appeal  could  be  taken  (Revised  Statutes, 
§  1008),  but  was  not  presented  to  the  court  below  nor  filed  with 
the  clerk  until  five  days  after  the  prescribed  time  had  expired. 
It  was  held  that  the  appeal  must  be  dismissed,  and  Mr.  Justice 
Bradley  added : 

"The  attempt  made,  in  this  case,  to  anticipate  the  actual 
time  of  presenting  and  filing  the  appeal,  by  entering  an  order 
nunc  pro  tunc,  does  not  help  the  case.  When  the  time  for  tak- 
ing an  appeal  has  expired,  it  cannot  be  arrested  or  called  back 
by  a  simple  order  of  court.  If  it  could  be,  the  law  which  limits 
the  time  within  which  an  appeal  can  be  taken  would  be  a  dead 
letter." 

In  Farrar  v.  ChurckiU,  135  U.  S.  609,  it  was  held  that  a 
cross  appeal  in  equity,  like  other  appeals,  must  be  entered 
withiin  the  time  limited,  calculating  from  the  date  of  the  de- 
cree, and  because  in  that  case  petition,  order  and  bond  were 
not  filed  in  the  Circuit  Court  until  after  the  lapse  of  two  years 
from  the  entry  of  the  decree  the  cross  appeal  was  dismissed. 
It  was  ruled  also  that  the  failure  to  file  an  assignment  of  errors, 
although  required  by  the  act  of  Congress,  and  the  rule  of  court, 
was  not  jurisdictional  and  could  be  waived.  Revised  Statutes, 
§  997;  Rule  11 ;  School  District  v.  Hall,  106  U.  S.  428. 

In  Coriboy  v.  Bank,  203  U.  S.  141,  it  was  held  that  the  time 
within  which  an  appeal  may  be  taken  under  §  256  of  the  bank- 
ruptcy act  and  general  order  in  bankruptcy  XXXVI  runs  from 
the  entry  of  the  original  judgment  or  decree,  and  when  it  has 
expired  is  not  revived  by  a  petition  for  a  rehearing,  and  that 
where  the  right  of  appeal  has  been  lost,  appellant  cannot  rein- 
vest himself  with  that  right  by  filing  such  petition,  and  Credit 
Company  v.  Arkansas  Central  Railway,  128  U.  S.  258,  261,  was 
cited  with  approval. 

Plaintiff  in  error  contends  that  the  delay  in  settling  the  bill 
of  exceptions  was  not  its  fault,  but  was  attributable  to  the 
judicial  engagements  of  the  trial  judge,  and  that  imtil  the  bill 
of  exceptions  was  settled  its  counsel  could  not  intelligently 


OLD  NICK  WILLIAMS  CO.  v.  UNITED  STATES.    545 

215  U.  S.  Opinion  of  the  Court. 

prepare  the  assignment  of  errors  which  should  accompany  the 
petition  for  the  writ  of  error.  But  the  assignment  of  errors 
does  not  require  the  previous  settlement  of  the  bill  of  excep- 
tionS;  and  can  be  formulated  before  that  takes  place.  In 
Waldron  v.  TFoWron,  156  U.  S.  361,  cited  in  the  opinion  of  the 
Court  of  Appeals,  the  judgment  was  entered  July  10, 1890,  and 
the  writ  of  error  was  dated  July  15, 1890,  but  the  bill  of  excep- 
tions was  not  settled  during  the  term,  and,  because  of  subse- 
quent delays,  not  until  February,  1891,  yet  this  court  held  it  to 
be  in  time  in  the  circumstances.  But  the  writ  of  error  had  al- 
ready issued  and  been  deposited  with  the  clerk  of  the  trial 
court,  and  after  that  the  time  for  complying  with  it  might  by 
proper  authority  be  enlarged.  Mussina  v.  Cavazos,  6  Wall. 
355. 

As  we  have  stated,  the  assignment  of  errors  is  not  a  jurisdic- 
tional requirement,  and  although  by  the  rule  errors  not  as- 
signed would  be  disregarded,  the  court  might  at  its  option 
notice  a  plain  error  not  assigned  or  specified. 

The  delay  in  the  present  case  in  taking  out  the  writ  of  error 
was  not  the  act  of  the  court,  but  of  plaintiff  in  error.  At  all 
events,  plaintiff  in  error  might  have  brought  its  writ  of  error 
within  the  time  prescribed  by  statute,  and  the  court  had  no 
power  to  allow  it  after  the  time  limited  had  expired. 

Judgment  affirmed. 


VOL.  ccxv— 35 


646  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 


WAGG  V,  HERBERT. 

APPEAL  FROM  THE  SUPREME  COURT  OF  THE  TERRITORY  OF 

OKLAHOMA. 

No.  29.    Argued  November  11,  1909.— Decided  January  24, 1910. 

In  a  suit  in  equity  to  have  a  deed  declared  a  mortgage  and  in  which 
fraud,  oppression  and  undue  influence  are  charged,  the  court  is  not 
concluded  by  what  appears  on  the  face  of  the  papers  but  may  in- 
quire into  the  real  facts  of  the  transactions.  Russell  v.  Southard,  12 
How.  139. 

A  court  of  equity  may  decree  that  a  deed  given  in  settlement  of  a 
mortgage  debt,  no  new  consideration  moving,  was,  by  reason  of 
fraud,  oppression  and  undue  influence,  merely  a  new  mortgage,  and 
by  such  decree  no  new  contract  is  created  by  the  court,  and  the  rela- 
tion of  mortgagor  and  mortgagee  originally  existing  is  not  disturbed. 

Though  laches  may  be  the  equitable  equivalent  of  the  legal  statute  of 
limitations,  there  is  no  flxed  time  that  makes  it  a  bar,  and  in  this 
case  a  delay  of  a  little  over  two  years  in  bringing  an  action  to  havi^ 
a  deed  declared  to  be  an  equitable  mortgage  did  not  amount  to 
laches. 

19  Oklahoma,  525,  affirmed. 

This  was  a  suit  commenced  on  June  13, 1903,  in  the  District 
Court  of  Pawnee  County,  Oklahoma,  by  William  H.  Herbert 
and  Mary  B.  Herbert,  his  wife,  against  a  number  of  defendants, 
the  principal  one  being  Solomon  R.  Wagg,  the  appellant.  The 
suit  was  one  to  have  a  certain  conveyance,  in  form  conveying 
the  legal  title  to  a  tract  of  land  from  Mrs.  Herbert  to  Wagg,  ad- 
judged void,  as  having  been  fraudulently  obtwned,  and  to  re- 
deem the  property  from  a  prior  mortgage  lien.  An  outline  of 
the  transaction  between  the  Herberts  and  Wagg  is  as  follows : 
On  October  26,  1898,  they  borrowed  from  him  one  thousand 
dollars  and  gave  their  promissory  note  payable  in  one  year, 
with  interest  after  maturity  at  ten  per  cent  per  annum,  and  as 
security  therefor  a  mortgage  on  eighty  acres  belonging  to  her, 
and  adjoining  the  town  of  Cleveland,  in  the  county  of  Pawnee, 


WAGG  V,  HERBERT.  547 

215  U.  S.  Statement  of  the  Caae. 

Wagg  retained  one  hundred  dollars  as  interest  for  the  first 
year,  and  sent  the  mortgagors  nine  hundred  dollars.  At  the 
same  time,  as  required  by  him,  the  plaintifiFa  executed  to  him  a 
warranty  deed  for  the  same  real  estate,  which  was  left  in  the 
bank  of  Cleveland  in  escrow  as  security  for  the  note  and  mort- 
gage. In  closing  this  transaction  he  wrote  to  one  of  the  plain- 
tiffs a  letter,  in  which  he  said :  "This  pays  first  year's  interest, 
second  year's  interest  is  not  due  until  the  end  of  the  second 
year  and  six  months'  grace  on  end  of  this  makes  a  full  two  and 
a  half  years  before  you  allow,  or  I  can  ask  for  the  deed  in  case 
of  default  of  contract." 

On  December  26, 1899,  he  withdrew  the  deed  in  escrow  from 
the  bank  and  caused  it  to  be  filed  and  recorded  in  the  office  of 
the  register  of  deeds  of  Pawnee  County.  His  excuse  for  this 
was  that  not  merely  was  one  hundred  dollars  due  as  interest, 
but  also  that  there  was  a  default  in  the  payment  of  taxes  for 
the  year  1898,  and  that  to  protect  the  property  he  had  been 
obliged  to  pay  them,  amounting  to  $24.94,  with  accrued 
penalty  and  costs.  Notwithstanding  he  had  taken  and  re- 
corded this  deed,  which  apparently  transferred  to  him  the 
legal  title,  he  advised  Mrs.  Herbert  that  she  might  still  redeem 
the  land  according  to  the  terms  of  the  original  loan.  In  May, 
1901,  the  parties,  who  had  been  talking  of  a  settlement  for 
some  time,  executed  two  deeds,  one  from  Mrs.  Herbert,  her 
husband  having  left  for  parts  unknown,  to  the  defendant  of 
the  entire  eighty  acres,  and  one  from  him  to  her  of  twenty-five 
acres.  Thereafter  this  defendant  platted  the  fifty-five  acres 
as  an  addition  to  the  town  of  Cleveland  and  sold  and  conveyed 
lots  to  the  other  parties  named  as  defendants. 

In  the  second  amended  petition,  the  one  upon  which  the 
case  was  tried,  plaintiffs  alleged  that  the  defendant  Wagg  was 
guilty  of  fraud  and  oppression,  and  taking  advantage  of  his 
position  and  the  relationship  of  the  parties,  obtained  for  a 
grossly  inadequate  consideration  the  title  to  the  fifty-five 
acres;  that  after  platting  he  conveyed  some  lots  "to  innocent 
purchasers,  the  exact  lots  and  amounts  received  for  which  are 


548  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  XT.  S. 

not  known  to  the  plaintiff,  but  which  amount  to  a  large  sum 
of  money;''  that  he  had  not  accounted  for  the  moneys  so 
wrongfully  received,  and  that  an  accounting  was  necessary. 

The  case  was  tried  by  the  judge  without  a  jury.  Several 
hundred  pages  of  testimony  were  taken,  and  on  May  19, 1905, 
a  decree  was  entered  finding  generally  the  issues  in  favor  of  the 
plaintiff,  Mrs.  Herbert,  the  death  of  whose  husband  had  been 
suggested  pending  the  suit,  adjudging  that  the  deed  of  May, 
1901,  from  her  to  the  defendant  was  a  mortgage,  that  an  ac- 
counting be  had  and  that  she  be  allowed  to  redeem.  The  case 
was  reserved  for  further  consideration  and  determination  of 
the  claims  of  and  an  accounting  with  the  other  defendants. 
This  decree  was,  on  October  12, 1907,  affirmed  by  the  Supreme 
Court  of  the  Territory,  Wagg  v.  Herbert,  19  Oklahoma,  525, 
all  the  defendants  joining  in  the  appeal  to  that  court.  There- 
after the  case  was  brought  here  on  appeal  by  the  defendant 
Wagg,  the  other  defendants  not  joining  in  the  appeal,  but 
named  as  parties  appellees. 

Mr,  Arthur  J,  Biddison  for  appellant: 

A  general  averment  of  fraud  in  a  bill  in  equity  is  limited  by 
the  facts  set  forth  to  show  the  fraud.  United  States  v.  Des 
Moines  &c,  Ry.,  142  U.  S.  544;  Wiseman  v.  Eastman^  21  Wash- 
ington, 163.  A  general  averment  without  stating  specific  facts 
presents  no  issue  and  no  proof  is  admissible.  Kingman  Ry. 
Co.  V.  Quinnj  45  Kansas,  477;  Woods  v.  Carpenter,  101  U.  S. 
135;  SouthaU  v.  Parish,  1  L.  R.  A.  641;  Bardwick  v.  DiUon,  7 
Oklahoma,  535;  Lee  v.  Mehew,  8  Oklahoma,  136;  Jackson  v. 
Rowell,  4  L.  R.  A.  637. 

The  legal  title  passed  under  the  conveyances  and  there  was 
no  fraud.  Bradbury  v.  Davenport,  52  Pac.  Rep.  301;  Vance  v. 
Anderson,  45  Pac.  Rep.  816;  Seawell  v.  Hendricks,  46  Pac.  Rep. 
557;  McDonald  v.  Huff,  19  Pac.  Rep.  499;  RussdL  v.  Southard, 
12  How,  139,  distinguished. 

It  is  neither  fraud,  oppression  nor  undue  influence  for  a 
creditor  to  make  claims  in  excess  of  his  legal  rights.    Nell  v. 


WAGG  V.  HERBERT.  549 

215  U.  S.  Argument  for  Appellant. 

Carson,  2  S.  W.  Rep.  107;  Schramm  v.  Hawpt,  37  N.  W.  Rep. 
798;  Perkins  v.  Frinka,  15  N.  W.  Rep.  115;  Thompson  v. 
Phoenix  Ins.  Co.,  46  Am.  Rep.  357;  Insurance  Co,  y.  Warten, 
59  Am.  St.  Rep.  129;  Fish  v.  CleUand,  33  Illinois,  238;  Sever- 
ance V.  Ash,  17  Atl.  Rep.  69;  14  Am.  &  Eng.  Ency.  of  Law, 
2d  ed.,  54;  Morton  v.  Morris,  72  Fed.  Rep.  392;  Stewart  v. 
Miller,  7  S.  W.  Rep.  603;  Walker's  Adm,  v.  Farmers'  Bank, 
14  Atl.  Rep.  823. 

Nor  is  it  fraud  or  oppression  to  threaten  a  civil  suit.  Dis- 
peau  V.  Bank,  53  Atl.  Rep.  868;  HUbum  v.  Bucknum,  7  Atl. 
Rep.  272;  10  Am.  &  Eng.  Ency.  L.,  2d  ed.,  344. 

In  order  to  constitute  undue  influence  the  grantor  must  be 
deprived  of  free  agency.  Conley  v.  Nailor,  ll8  U.  S.  127. 
Misrepresentations  of  law  only  will  not  vitiate  a  contract, 
even  if  the  other  party  is  ignorant  of  his  rights.  AUen  v. 
GaUoway,  30  Fed.  Rep.  467;  Abbot  v.  Treat,  3  Atl.  Rep.  47; 
Kingsberry  v.  Sargent,  22  Atl.  Rep.  126;  Jones  v.  Foster,  51 
N.  E.  Rep.  862;  Foster  v.  Railway  Co.,  146  U.  S.  88;  Insurance 
Co.  V.  Warten,  59  Am.  St.  Rep.  129;  Wetzel  v.  Transfer  Co.,  65 
Fed.  Rep.  23;  S.  C,  167  U.  S.  237.  The  transaction  was  a  pur- 
chase of  part  of  the  property  and  not  an  acquisition  of  the 
equity  of  redemption. 

The  plaintiff  was  guilty  of  laches,  barred  by  the  two-year 
statute  of  limitations,  and  changed  conditions  make  the  avoid- 
ance inequitable.  Moore  v.  Moore,  56  California,  89;  Mc- 
Millan v.  Cheeney,  30  Minnesota,  519.  Knowledge  of  facts 
and  not  of  law  is  all  that  is  necessary  to  set  statute  in  motion. 
Commissioners  v.  Renshaw,  99  Pac.  Rep.  638;  Black  v.  Black, 
68  Pac.  Rep.  662;  Piekenbrock  v.  Knower,  114  N.  W.  Rep.  200; 
Donaldson  v.  Jacobitz,  72  Pac.  Rep.  846;  Redd  v.  Brun,  157 
Fed.  Rep.  190.  For  cases  similar  to  this  in  which  laches  was 
held  a  bar  see  Alsop  v.  Riker,  155  U.  S.  448;  Leavenworth  v. 
Douglass,  53  Pac.  Rep.  123;  Thornton  v.  Natchez,  129  Fed.  Rep. 
84;  Johnson  v.  Atlantic  Co.,  156  U.  S.  648;  Life  Ins.  Co.  v. 
Austin,  166  U.  S.  699;  State  v.  LaJCrosse,  77  N.  W.  Rep.  167; 
Grass  v.  Portland  Co.,  54  Pac.  Rep.  845;  Robers  v.  Van  Anl- 


550  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

vnck,  58  N.  W.  Rep.  757;  Schlavrig  v.  Purshw,  8  C.  C.  A.  315; 
Wheder  v.  McNeU,  101  Fed.  Rep.  685. 

Silence,  delay,  acquiescence  or  use  or  retention  of  fruits  of 
contract  amounts  to  ratification.  Scheftd  v.  Hays,  58  Fed. 
Rep.  ^57  ;Kinne  v.  WAb,  54  Fed.  Rep.  54;  Parson  v.  McKirdey, 
57  N.  W.  Rep.  1134;  Paine  v.  Hamson,  37  N.  W.  Rep.  588; 
Grymes  v.  Sanders,  93  U.  S.  55;  Shelby  v.  Creighton,  91  N.  W. 
Rep.  369;  Hoyt  v.  Latham,  143  U.  S.  553;  OiJ  Co.  v.  Marhury, 
91  U.  S.  537;  Litchfield  v.  Broi^n,  17  C.  C.  A.  28.  A  delay  of 
three  years  or  less  was  held  fatal  in  Bladcman  v.  Wright,  65 
N.  W.  Rep.  SiS;  Straight  v.  Junk,  59  Fed.  Rep.  321 ;  Sagadahoc 
Land  Co.  v.  Ewing,  65  Fed.  Rep.  702;  CuHis  v.  LoAin,  94  Fed. 
Rep.  251;  Day  v.  i?'^  Scott  Co.,  38  N.  E.  Rep.  567;  Perry  v. 
Pierson,  25  N.  E.  Rep.  636;  Land  Co.  v.  iVeiH,  6  So.  Rep.  1; 
ffo^A  V.  Ferguson,  57  Fed.  Rep.  959;  aff'd  14  C.  C.  A.  41; 
Curley  v.  Rv^,  35  N.  E.  Rep.  824;  Arnold  v.  Hagerman,  17 
Atl.  Rep.  93;  Fraker  v.  ffawA,  36  Fed.  Rep.  403;  Gooddl  v. 
Deivey,  100  Illinois,  308;  Bedford  v.  Moore,  54  Missouri,  448; 
Learned  v.  Foster,  117  Massachusetts,  365;  Schadski  v.  A5rijW, 
5  S.  W.  Rep.  807;  ifZtw  v.  Fo^eZ,  1  S.  W.  Rep.  733;  Schlaing 
V.  Flechenstein,  45  N.  W.  Rep.  770;  Hamilton  v.  Lubukee,  99 
Am.  Dec.  562;  Parkhurst  v.  Fan  Courtland,  7  Am.  Dec.  427; 
TFard  v.  Sherman,  192  U.  S.  168;  §  761,  Wilson's  Ann.  Stat. 
1903. 

Mr.  E.  M.  Clark  and  Mr.  Watson  E.  Coleman  for  appellee 
submitted. 

Mr.  Justice  Brewer,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

The  petition  charged  that  the  defendant  Wagg  was  guilty  of 
fraudulent,  wrongful,  oppressive  and  unjust  conduct,  and  that 
through  such  conduct  he  obtained  the  deed  of  May  28,  1901. 
The  trial  court,  as  stated,  found  generally  in  plaintifTs  favor. 
The  Supreme  Court,  in  an  elaborate  opinion,  in  which  it 


WAGG  V.  HERBERT.  551 

215  U.  S.  Opinion  of  the  Court. 

narrated  fully  the  details  of  the  transactions  between  these 
parties  and  the  testimony  given  on  the  hearing,  closed  its 
recital  in  these  words : 

''  It  must  therefore  follow,  as  an  irresistible  conclusion,  that 
the  allegations  in  the  petition,  of  fraud,  oppression,  undue  in- 
fluence, and  inadequate  consideration  were  fully  sustained  by 
the  evidence,  and  we  are  unable  to  perceive  how  the  trial  court 
could  have  reached  any  other  fair,  just,  and  rational  conclusion 
upon  the  entire  evidence  as  disclosed  by  this  record." 

The  testimony  as  to  the  value  of  the  property  at  the  time  of 
the  settlement  in  May,  1901,  was  conflicting,  some  placing  it  at 
$100  per  acre.    In  reference  to  this  conflict  the  court  said : 

"  It  is  a  settled  rule  of  this  court,  and  one  which  we  have 
reiterated  and  reiterated  time  and  again,  that  where  the  evi- 
dence reasonably  sustains  the  finding  and  judgment  of  the 
court,  or  where  the  evidence  is  conflicting,  it  will  not  be  dis- 
turbed by  this  court." 

Evidently  the  Supreme  Court  believed  that  the  defendant 
had  acquired  in  settlement  of  a  debt  a  tract  of  land  of  far 
greater  value  than  the  amount  of  the  debt,  and  that  this  was 
accomplished  by  fraud,  oppression  and  undue  influence.  Upon 
these  facts  a  decree  setting  aside  the  conveyance  was  un- 
doubtedly right. 

Counsel  for  defendant,  on  his  appeal  to  this  court,  has  filed  a 
brief  of  over  150  pages,  in  which  he  narrates  the  facts  as  they 
appear  to  him,  and  cites  many  authorities  as  to  the  circum- 
stances which  will  uphold  a  conveyance  upon  such  or  similar 
facts.  Of  course,  upon  the  face  of  the  papers  the  deeds  of 
May,  1901,  vested  in  the  defendant  the  title  to  the  fifty-five 
acres,  but  it  is  well  established  that  in  a  suit  in  equity  between 
parties,  in  which  fraud,  oppression  and  undue  influence  are 
charged,  the  court  is  not  concluded  by  that  which  appears  on 
the  face  of  the  papers,  but  may  institute  an  inquiry  into  the  real 
facts  of  the  transactions.  So  thoroughly  is  this  doctrine  estab- 
lished that  any  discussion  of  the  cases  in  this  and  other  courts 
aflSrming  it  would  be  useless.    They  rest  upon  elementary 


552  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215 17.  S. 

principles  of  equity.  It  is  sufficient  to  refer  to  Rttssell  v.  South- 
ard, 12  How.  139,  and  the  many  authorities  cited  in  the 
opinion. 

Counsel  further  contends  that  the  decree  is  erroneous,  in 
that  it  adjudges  that  the  deed  of  May,  1901,  to  defendant  was 
a  mortgage,  and  as  such  only  a  lien  upon  the  property;  that 
there  is  no  evidence  that  this  deed  was  not  intended  as  a  con- 
veyance or  that  it  was  intended  as  a  mortgage,  and  that  courts 
do  not  make  contracts  for  parties.  But  this  contention  pre- 
sents a  mere  technical  matter.  The  petition  alleges,  in  ad- 
dition to  the  averment  that  the  deed  was  obtained  wrongfully 
and  fraudulently,  "that  the  only  consideration  received  by 
said  plaintiff  for  the  said  purported  deed,  marked  '  Exhibit  E ' 
(the  deed  to  defendant  of  May,  1901,  of  the  entire  tract)  was  a 
relinquishment  of  the  said  mortgage  herein  referred  to  as  'Ex- 
hibit B '  (the  original  mortgage  given  by  Mr.  and  Mrs.  Herbert 
to  defendant).''  In  other  words,  whatever  technical  criticism 
may  be  made  upon  the  form  of  the  decree,  it  was  in  substance 
a  finding  and  decree  that  the  deed  of  May,  1901,  was  void,  as 
having  been  obtained  by  the  fraudulent  conduct  of  the  de- 
fendant, and  that  being  set  aside,  left  the  property  subject  to 
the  lien  of  the  original  mortgage  given  October  24,  1898.  Of 
course,  the  act  of  Wagg  in  taking  from  the  bank  the  deed 
placed  in  escrow  and  having  it  recorded  may,  in  view  of  his  as- 
surances to  Mrs.  Herbert,  be  regarded  as  immaterial.  Equitar- 
bly,  the  relation  of  mortgagor  and  mortgagee  was  not  dis- 
turbed. The  court  did  not  make  a  new  contract  for  the  parties, 
but,  leaving  the  mortgage  valid  and  binding,  decreed  the  in- 
validity of  a  subsequent  conveyance,  and  also  ordered  an 
accounting  by  the  defendant  as  a  mortgagee  in  possession. 

There  is  in  this  case  no  lapse  of  time,  no  matter  of  estoppel, 
which,  so  far  as  the  defendant  Wagg  is  concerned,  forbids  a 
court  of  equity  from  investigating  and  determining  the  real 
facts.  Mrs.  Herbert's  deed  to  defendant  was  executed  May  28, 
1901,  and  this  suit  was  commenced  June  13,  1903,  less  than 
two  years  and  a  month  from  the  date  of  the  wrong  complained 


WAGG  V,  HERBERT.  553 

215  U.  S.  Opinion  of  the  Court. 

of.  While  laches  is  often  spoken  of  as  the  equitable  equivalent 
of  the  legal  statute  of  limitations,  yet  there  is  no  fixed  time 
which  makes  it  an  absolute  bar.  In  Russell  v.  Southard,  supra, 
there  was  between  the  fraudulent  transaction  and  the  com- 
mencement of  the  suit  a  lapse  of  nineteen  years  and  eight 
months,  and  it  was  held  that  that  was  not  sufficient,  the  court 
saying  (p.  155) ; 

*'The  absence  of  all  valuable  consideration  for  the  surrender 
of  the  equity,  and  the  circumstances  of  distress  under  which  it 
was  made,  and  which,  so  far  as  appears,  continued  to  exist 
down  to  the  filing  of  the  bill,  coupled  with  the  conviction, 
which  we  think  Russell  mistakenly  entertained,  that  his  rights 
were  probably  destroyed,  must  prevent  us  from  allowing  the 
lapse  of  time  to  be  a  positive  bar." 

The  rights  of  purchasers  from  Wagg  subsequent  to  May  28, 
1901,  are  protected  by  the  accounting  ordered,  and  as  they  did 
not  appeal  from  the  decree  it  must  be  assumed  that  they  were 
satisfied  with  it. 

The  decree  of  the  Supreme  Court  of  the  Territory  of  Okla- 
homa is 

Affirmed. 


554  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  216  U.  S. 


LOWREY  V.  TERRITORY  OF  HAWAII. 

APPEAL  FROM  THE  SUPREME  COURT  OF  THE  TERRITORY  OF 

HAWAII. 

No.  469.    Argued  December  6,  1909.— Decided  January  24,  1910. 

The  decision  and  opinion  of  this  court  in  Lawrey  v.  Hawaii^  206  U.  S. 
206,  construed  and  followed  as  to  construction  of  contract  involved 
and  liability  thereunder  of  the  Hawaiian  government. 

A  condition  to  teach  a  definite  Christian  doctrine  is  not  satisfied  by 
teaching  merely  a  form  of  general  evangelical  Christianity. 

Where  the  breach  of  a  covenant  of  use  entails  either  forfeitiure  or  pay- 
ment of  a  specified  sum,  the  grantee  has  the  right  of  election  until 
disavowal  on  his  part  and  denial  of  the  alternative  obligation;  and 
until  then,  notwithstanding  a  continuous  breach,  the  statute  of 
limitations  does  not  run  against  the  grantor. 

A  deed  of  trust  conve3ang  all  lands  of  grantor  or  in  which  it  has  any 
interest  held  in  this  case  to  include  its  right  to  a  liquidated  sum  in 
lieu  of  right  of  reentry  for  a  breach  of  covenant  of  use  of  lands 
theretofore  conveyed  by  it. 

19  Hawaii,  123,  reversed. 

The  facts  are  stated  in  the  opinion. 

Mr.  David  L,  Withington  for  appellant: 

It  is  law  of  this  case  that  the  terms  of  the  agreement  require 
the  inculcation  of  general  learning  and  knowledge  accom- 
panied with  religious  instruction  in  accordance  with  the  con- 
fession of  faith  submitted  to  the  Hawaiian  government, 
Lowrey  v.  Hawaii,  206  U.  S.  206,  and  it  is  as  much  a  breach  to 
fail  to  teach  doctrine  as  to  teach  religion. 

The  condition  for  religious  teaching  is  unchanging,  definite 
and  absolute  to-day.  No  waiver  or  statute  of  limitation  bars 
the  action. 

A  trust  of  this  kind  for  religion  is  valid,  and,  so  long  as  there 
is  anyone  in  interest  demanding  its  fulfillment,   must  be 


LOWREY  v.  HAWAII.  555 

215  U.  S.  Argument  for  Appellant. 

carried  out.  Watson  v.  Jones,  13  Wall.  679.  The  general 
doctrines  of  Christianity  are  a  part  of  the  common  law  of  the 
country  and  we  are  a  Christian  people.  Holy  Trinity  Church  v. 
United  States,  143  U.  S.  457.  And  see  Vidal  v.  Girard's  Execu- 
tors, 2  How.  127 ;  Free  Church  v.  Overtown,  L.  R.  1904,  A.  C.  515. 

While  an  independent  church  may  by  majority  vote  change 
its  views  as  held  in  Wisivdl  v.  Congregational  Church,  14  Ohio 
St.  31 ;  Keyset  v.  Stansifer,  6  Ohio,  363;  Trinitarian  Cong,  Soc. 
V.  Union  Cong,  Soc.,  61  N.  H.  384;  Fadners  v.  Braunborg,  73 
Wisconsin,  257;  Landis'  Appeal,  102  Pa.  St.  467,  that  is  not 
the  case  where  the  church  has  been  founded  for  a  particu- 
lar form  of  worship  and  doctrine;  in  such  case  even  all  the 
members  cannot  alter  the  doctrine.  Schnorr^s  Appeal,  67 
Pa.  St.  138;  St.  Mary's  Church  Case,  7  Serg.  &  R.  517;  Den  v. 
Bolton,  12  N.  J.  L.  206;  Craigdallie  v.  Aikman,  1  Dow,  1; 
Foley  V.  Wonnter,  2  Jac.  &  W.  245;  Leslie  v.  Bimie,  2  Russ. 
114;  Davis  v.  Jenkins,  3  Ves.  &  B.  156;  MiUigan  v.  Mitchell, 
3  Myl.  &  C.  72;  S.  C,  1  Myl.  &  K.  446. 

For  cases  in  which  courts  have  interfered  to  prevent  funds 
given  to  support  either  Unitarianism  or  Trinitarianism  from 
being  used  to  support  the  other,  see  Roshi's  Appeal,  69  Pa.  St. 
462;  Rottman  v.  Bartling,  22  Nebraska,  375;  Attorney  General 
V,  HuUon,  7  It.  Eq.  612;  Miller  v.  Gable,  2  Denio,  492,  648; 
2  Story,  Eq.,  §  1191a;  Attorney  General  v.  Pearson,  3  Meur. 
363;  S.  C,  7  Sim.  290;  Shore  v.  Attorney  General,  9  Clark  & 
F.  356;  Attorney  General  v.  Shore,  11  Sim.  692;  Attorney  Gen- 
eral V.  Wilson,  16  Sim.  210;  Attorney  General  v.  Drummond, 
1  Dm.  &  W.  353;  Christian  Church  v.  Carpenter,  108  Iowa, 
650;  Cape  v.  Plymouth  Church,  117  Wisconsin,  166;  Rodgers  v. 
BumeU,  108  Tennessee,  173. 

It  is  the  duty  bf  courts  to  see  that  dedicated  property  is 
not  diverted  from  the  trust  to  which  it  has  been  dedicated. 
Lamb  v.  Cain,  129  Indiana,  486;  Smith  v.  Pedigo,  146  Indiana, 
386  and  406;  Princeton  v.  Adams,  10  Cush.  129.  The  guar- 
anty of  religious  freedom  does  not  affect  this  rule.  Bear  v. 
Heasley,  98  Michigan,  279,   The  right  to  the  property  depends 


556  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

not  on  numbers  but  on  those  who  adhere  to  the  doctrine 
specified  in  the  dedication.  Baker  v.  Ducker,  79  California, 
365;  Peace  v.  Christian  Churchy  20  Tex.  Civ.  App.  85;  Greek 
Church  V.  Orthodox  Church,  195  Pa.  St.  425;  Dochkus  v. 
Lithuanian  Society,  206  Pa.  St.  25;  Roshi^s  Appeal,  69  Pa.  St. 
462;  Clark  v.  Brown,  108  S.  W.  Rep.  421;  Mack  v.  Kime, 
129  Georgia,  1;  Marien  v.  Evangelical  Congregation,  132  Wis- 
consin, 650.  This  property  whether  in  the  hands  of  the  mis- 
sion, government,  or  trustees  was  impressed  with  a  trust  for 
a  religious  use,  and  failure  to  enforce  a  trust  is  not  barred  by 
mere  lapse  of  time.  Oliver  v.  Piatt,  3  How.  333,  411;  New 
York  Indians  v.  United  States,  170  U.  S.  1. 

Mere  silence  or  delay  will  not  defeat  the  action  where  the 
obligation  is  continuous.  Tynan  v.  Warren,  53  N.  J.  Eq. 
313;  Union  College  v.  New  York,  173  N.  Y.  38;  Ryder  v. 
Loomis,  161  Massachusetts,  161;  Stockbridge  Iron  Co,  v. 
Hudson  Iron  Co.,  107  Massachusetts,  290;  Royal  v.  AuUman 
Co,,  116  Indiana,  424;  Angell  on  Limitation,  5th  ed.,  §72; 
Ganley  v.  Bank,  98  N.  Y.  487. 

Past  breaches  can  be  waived  by  considering  the  condition 
still  in  effect  with  knowledge  of  the  breaches.  Hubbard  v. 
Hubbard,  97  Massachusetts,  188;  Payson  v.  Bumham,  141 
Massachusetts,  547;  Linzee  v.  Mixer,  101  Massachusetts,  512; 
Bacon  v.  Sandberg,  179  Massachusetts,  396.  Neglect  and  re- 
missness may  not  constitute  a  breach.  There  must  be  an 
intent  not  to  carry  out  the  contract.  Osgood  v.  Abbott,  58 
Maine,  73;  Mills  v.  Seminary,  58  Wisconsin,  135;  Coleman  v. 
Whitney,  62  Vermont,  123.  Mere  silence  and  delay  do  not 
create  estoppel  against  forfeiture.  Gray  v.  Blanchard,  8 
Pick.  284;  Maginnis  v.  Ice  Co,,  112  Wisconsin,  385.  Parol 
assent  without  change  of  situation  does  not  destroy  express 
condition.  Jackson  v.  Crysler,  1  Johns.  Cas.  125;  Plumb  v. 
Tubbs,  41  N.  Y.  442;  Congregationist  Society  v.  Osbom,  94 
Pac.  Rep.  881;  Hou^  v.  Lowell,  171  Massachusetts,  575. 
Patient  endurance  of  repeated  breaches  does  not  bar  right  to 
rescind  when  the  conduct  becomes  unendurable.     Gall  v. 


LOWREY  V,  HAWAII.  557 

215  U.  S.  Argument  for  Appellant. 

GaRj  126  Wisconsin,  390;  and  on  this  point  see  also  Bleecker 
V.  Smith,  13  Wend.  530;  Doe  v.  Woodbridge,  9  B.  &  C.  376; 
Dakin  v.  WiUiamSy  17  Wend.  447;  Doe  v.  Jones,  5  Exch.  498; 
Farwell  v.  Eastonj  63  Missouri,  446;  Alexander  v.  Hodges,  41 
Michigan,  691;  Adams  v.  Copper  Co,,  7  Fed.  Rep.  634.  A  de- 
mand or  equivalent  act  is  necessary  to  set  statute  in  motion. 
Preston  v.  Bosworth,  153  Indiana,  458;  Water  Power  Co.,  v. 
Belin,  69  Minnesota,  253;  Lewis  v.  Lewis,  74  Connecticut,  630; 
Hadley  v.  Manufacturing  Co,,  4  Gray,  140 ;  Crane  v.  Hyde  Park, 
135  Massachusetts,  147;  Merrifield  v.  Cobleigh,  4  Gushing, 
178;  PTard's  Appeal,  35  Connecticut,  161;  FearT/  v.  Cummins, 
28  Texas,  91;  Z^nA  v.  Jarvis,  33  Pac.  Rep.  201;  Eames  v. 
Savage,  14  Massachusetts,  425;  United  States  v.  Louisiana,  123 
U.  S.  32;  Bonnivell  v.  Madison,  107  Iowa,  85;  French  v.  Mcr- 
riH,  132  Massachusetts,  525;  Cromwell  v.  Norton,  193  Massa- 
chusetts, 293;  Stretch  v.  Schenck,  23  Indiana,  77;  PorA^s  v. 
SaUerthwaite,  123  Indiana,  411 ;  Homer  v.  CfarA,  27  Ind.  App.  6. 

For  cases  in  which  the  statute  did  not  run  from  the  breach 
but  the  demand,  see  Lydig  v.  Bramxm,  177  Massachusetts, 
212;  Babcock  v.  Wyman,  19  How.  289;  Stringer  v.  Stringer  Co,, 
93  Georgia,  320;  Porfcer  v.  Gaines,  US.  W.  Rep.  693;  Good- 
win V.  /Jaj/,  108  Tennessee,  614;  BoUes  v.  Steams,  11  Gush. 
320;  Ou*en  v.  Higgins,  113  Iowa,  735.  Nor  after  condition 
broken  until  forfeiture  asserted.  St,  Louis  R,  R,  v.  McGee, 
115  U.  S.  469;  Bybee  v.  Ore,  &  Col.  R,  R,,  139  U.  S.  663; 
Topham  v.  Braddick,  1  Taunt.  572;  Wright  v.  Hamilton,  2 
Bailey's  Law,  51;  CoUard^s  Admr,  v.  TutUe,  4  Vermont,  491. 

Where  an  agreement  is  in  the  alternative  a  money  demand 
does  not  arise  until  a  refusal  to  convey.  The  choice  is  pri- 
marily in  the  promisor.  Mayer  v.  Dwinell,  29  Vermont,  298; 
Foster  v.  Goldschmidt,  21  Fed.  Rep.  70;  Dessert  v.  Scott,  58 
Wisconsin,  390;  Smith  v.  Sanborn,  11  Johns.  59. 

The  day  before  payment  the  obligor,  the  day  of  payment 
the  obligee,  can  elect.  McNitt  v.  Clarke,  7  Johns.  465; 
Patchen  v.  Swift,  21  Vermont,  292;  Ross  v.  Sutton,  1  Bailey's 
Law,  129.    See  also  Barker  v.  Jones,  8  N.  H.  413;  White  v. 


558  OCTOBER  TERM,  1909. 

Argument  for  Appellee.  215  U.  S. 

Toncray,  5  Gratt.  179.  On  refusal  the  election  passes  to  the 
obligee.  Ramsey  v.  WaUham,  1  Missouri,  395;  PhiUips  v. 
Cornelius,  28  So.  Rep.  871;  McMillan  v.  Philaddphia  Co.,  159 
Pa.  St.  142;  Center  v.  Center,  38  N.  H.  318;  LUchfidd  v.  Irvin, 
51  N.  H.  51;  Hartmann  v.  f/mYed  States,  35  C.  Q.  106. 

The  effect  of  the  statute  of  limitations  was  fully  disposed  of 
on  the  last  appeal.    206  U.  S.  206. 

Plaintiffs  are  entitled  to  maintain  this  action.  McCandless 
V.  Castle,  19  Hawaii,  518;  Oahu  R.  &  L.  Co.  v.  Armstrong,  19 
Hawaii,  258.  The  court  below  could  not  authorize  a  new  de- 
fense.  Murphy  v.  Utter,  186  U.  S.  95. 

Mr.  C.  R.  Hemenway,  Attorney  General  of  Hawaii,  for 
appellee : 

There  was  no  breach  of  the  condition,  but  substantial  com- 
pliance has  been  continuous  as  to  ^ving  religious  instruc- 
tion. 

If,  however,  there  has  been  any  breach  it  occurred  as  early 
as  1877  and  any  action  thereon  is  barred  by  the  statute  of 
limitations.  Section  2004,  Rev.  Laws,  Hawaii;  Hartmann  v. 
United  States,  35  C.  CI.  106;  Butler  y.  United  States,  23  C.  d. 
335;  Carlisle  v.  United  States,  29  C.  CI.  414;  Aachen  &  Munich 
Fire  Ins.  Co.  v.  Martin,  156  Fed.  Rep.  654;  Brown  v.  Houd- 
lette,  10  Maine,  399;  Davis  v.  Brown,  98  Kentucky,  475; 
Wilcox  V.  Plummer's  Exrs.,  4  Pet.  172;  Finn  v.  United  States, 
123  U.  S.  227;  United  States  v.  Connor,  138  U.  S.  61;  United 
Stales  V.  Greaihouse,  166  U.  S.  602;  Uniied  States  v.  Wardwell, 
172  U.  S.  48;  KendaU  v.  United  States,  107  U.  S.  123;  De  Ar- 
naud  V.  United  States,  151  U.  S.  483. 

These  cases  also  show  that  the  statute  runs  from  the  time 
the  claim  becomes  perfect  and  complete.  On  this  point  see 
also  Riddle  v.  BeaUie,  77  Iowa,  168;  Kane  v.  Bloodgood,  7 
Johns.  Ch.  90. 

Whenever  there  is  an  adequate  remedy  at  law  the  statute 
will  be  held  to  apply,  even  though  relief  may  be  sought  in 
equity,  and  the  statute  will  run  from  the  time  the  first  cause 


LOWREY  T?.  HAWAII.  559 

215  17. 8.  Opinion  of  the  Court. 

of  action  accrues.  Jewell  v.  Jewell,  139  Michigan,  578;  Hay- 
ward  V.  GunUy  82  Illinois,  385;  Agens  v.  Agens,  50  N.  J.  Eq. 
566;  Roberts  v.  Ely,  113  N.  Y.  128;  Egerton  v.  Logian,  81  N.  C. 
172;  Tawnsend  v.  Eichdberger,  51  Ohio  St.  213;  Hosteller  v. 
HoUinger,  117  Pa.  St.  606;  TFottoce  v.  Lt?icoZn  Banifc,  89 
Tennessee,  630;  MerUm  v.  O'Brieny  117  Wisconsin,  437;  Cone 
V.  Dunham.,  59  Connecticut,  145;  Famam  v.  Brooks,  9  Pick. 
(Mass.),  212,  242;  JlfcrriZi  v.  MorUiceUo,  66  Fed.  Rep.  165; 
iS.  C,  72  Fed.  Rep.  462. 

The  findings  of  fact  from  which  the  conclusion  that  there 
was  no  breach  reached  by  the  Supreme  Court  of  Hawaii  neces- 
sarily are  binding  and  conclusive  upon  this  court.  HalseU  v. 
Renfrow,  202  U.  S.  287;  San  Pedro  Co.  v.  United  States,  146 
U.  S.  120;  Zeckendarf  v.  Johnson,  123  U.  S.  617;  Eilers  v. 
Boatman,  111  U.  S.  356;  Sturr  v.  Peck,  133  U.  S.  541;  Sims  v. 
Sims,  175  U.  S.  162;  HoUoioay  v.  Dunham,  170  U.  S.  615; 
Idaho  Co.  V.  Bradbury,  132  U.  S.  509;  Grayson  v.  Lynch,  163 
U.  S.  468. 

Plaintiffs  are  not  entitled  to  maintain  this  or  any  cause  of 
action  for  a  breach  of  this  agreement.  The  agreement  under 
which  they  hold  only  refers  to  real  property  and  not  to  a 
claim  of  this  nature. 

Even  if  this  might  have  been  raised  by  demurrer,  it  is  not 
waived,  as  no  oflBcer  could  waive  a  defense  for  the  Territory. 
Peacock  v.  Republic  of  Havxm,  11  Hawaii,  404;  Kendall  v. 
United  States,  107  U.  S.  123;  Carlisle  v.  United  States,  29  C.  CI. 
414;  Finn  v.  United  States,  123  U.  S.  227;  ChriMie  Street  Com, 
Co.  V.  United  States,  129  Fed.  Rep.  506;  De  Amaud  v.  United 
States,  151  U.  S.  483;  United  States  v.  UU,  80  Fed.  Rep.  851. 

Mr.  Juotice  McKenna  delivered  the  opinion  of  the  court. 

This  is  the  second  appeal  in  this  case.  The  first  appeal  was 
from  a  judgment  in  favor  of  the  Territory,  entered  upon  de- 
murrer to  the  complaint,  which  judgment  was  reversed. 
Lowrey  v.  Hawaii,  206  U.  S.  206. 


560  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

The  action  is  for  the  sum  of  $15,000,  which  the  Hawaiian 
government  reserved  the  right  to  pay,  instead  of  deeding  back 
certain  lands  conveyed  to  it  by  the  American  Board  of  Com- 
missioners of  Foreign  Missions  in  1849.  The  facts  as  alleged 
in  the  complaint  are  set  out  with  considerable  fullness  in  the 
report  of  the  case  on  the  first  appeal  and  need  not  be  repeated. 
Upon  the  return  of  the  case  to  the  Supreme  Court  of  the  Terri- 
tory an  answer  was  filed,  denying  "all  and  singular  the 
matters,  allegations  and  things  set  forth,"  and  giving  notice 
that  the  Territory  would  "rely  in  making  its  defense  inter  alia 
on  the  statute  of  frauds."  Subsequently  the  plaintiffs  made  a 
motion  upon  the  record  and  "upon  the  judgment  in  the  Su- 
preme Court  of  the  United  States"  for  judgment.  The  Terri- 
tory made  a  motion  to  amend  its  answer  to  set  up  the  statute 
of  limitations.  The  plaintiffs'  motion  was  denied,  that  of  the 
Territory  was  granted,  to  which  rulings  plaintiffs  excepted. 
Testimony  was  taken,  which  was  directed  principally  to  the 
question  of  the  breach  of  the  condition  upon  which  the  con- 
veyance to  the  government  was  made.  The  court,  in  its 
opinion,  says  that,  in  addition  to  the  "large  amoimt  of  docu- 
mentary and  other  evidence,"  it  has  ''  also  referred  to  proceed- 
ings of  a  public  nature,  of  which  it  could  ordinarily  take  judicial 
notice,  and  to  documents  from  the  public  archives,  when  spe- 
cially referred  to  in  the  exhibits  on  file."  Concluding  from  this 
and  the  other  evidence  that  the  plaintiffs  were  not  entitled  to 
recover,  it  rendered  judgment  for  the  Territory.  19  Hawaii, 
123. 

The  decision  on  the  first  appeal  is  an  important  factor  in  the 
determination  of  this,  for  upon  that,  as  a  guide,  the  Supreme 
Court  of  the  Territory  accepted  evidence  and  determined  the 
meaning  of  the  agreement  by  which  the  lands  were  conveyed. 

The  American  Board  of  Foreign  Missions  for  many  years 
prior  to  1850  conducted  a  Protestant  mission  in  the  Hawaiian 
Islands,  and,  as  an  essential  part  of  its  work,  carried  on  many 
schools.  Its  most  notable  work  was  centered  in  a  school,  es- 
tablished in  1831  at  Lahainaluna,  on  the  island  of  Maui,  where 


LOWREY  V,  HAWAII.  561 

215  U.  S.  Opinion  of  the  Court. 

it  possessed  a  large  tract  of  land.  The  purpose  for  which  the 
conveyance  of  this  school  to  the  Hawaiian  government  was 
made  and  the  course  of  instruction  in  it,  before  and  after  the 
conveyance  as  explaining  that  purpose,  make  the  controversy 
in  this  case.  It  is  contended  by  appellants  that  the  course  of 
instruction  in  the  institution  comprised  not  only  the  usual 
topics  belonging  to  secular  learning,  but  included  also  direct 
religious  teaching  and  training  in  the  doctrine  represented  by 
the  mission,  that  is,  the  doctrines  of  the  Congregational  and 
Presbyterian  churches  of  the  United  States,  and  was  expressed 
in  a  "Confession  of  Faith,"  which  was  attached  to  the  agree- 
ment that  transferred  the  property  to  the  Hawaiian  govern- 
ment. "The  central  purpose  of  the  agreement  was,"  counsel 
for  appellant  contended  on  the  other  appeal,  "to  'continue' 
an  established  institution,  the  keystone  of  a  system  with  de- 
fined and  well-known  aims,  the  chief  being  the  promotion  of 
religion  by  instruction  in  definite  religious  truth."  The  op- 
posing contention  was  that  the  doctrine  to  be  taught  was  not 
specialized,  that  there  were  no  restrictions  upon  the  course  of 
instruction,  except  that  it  should  not  be,  using  the  words  of 
the  agreement,  "contrary  to  those  theretofore  inculcated  by 
the  mission;"  and,  insisting  that  those  words  constituted  the 
complete  measure  of  the  obligation  of  the  government,  re- 
sisted the  attempt  of  the  appellants  to  go  outside  of  them  to 
ascertain  the  purpose  of  the  parties.  These  contentions  were 
considered  and  the  grounds  of  them  accurately  distinguished. 
The  contention  of  the  appellants  was  accepted.  It  is  not  nec- 
essary to  repeat  our  reasoning  at  length.  Our  conclusion  was 
that  the  Hawaiian  government  engaged  to  teach  not  only 
secular  science,  but  the  definite  religious  doctrine  expressed 
in  the  confession  of  faith,  attached  to  the  agreement.  The 
latter,  we  said,  was  "not  in  a  formally  executed  paper,"  but 
was  found  in  a  correspondence.  "And  taking  the  whole  of 
it,"  it  was  said,  "there  is  a  very  little  aid  from  extrinsic  evi- 
dence needed  to  demonstrate  its  meaning  and  purpose."  And 
after  considering  some  parts  of  the  correspondence,  we  con- 
VQL.  ccxv — ^36 


562  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

eluded  as  follows  (p.  221):  "The  correspondence  concerned 
the  transfer  of  a  school  established  in  1835,  the  design  of 
which  was  to  perpetuate  the  Christian  religion,  and  with  an 
object  described  to  be  'still  more  definite  and  of  equal  or 
greater  importance,'  that  is,  'to  educate  young  men  to  be 
Christian  ministers.'  A  religious  instruction  was  prescribed. 
All  this  the  government  was  informed  of  when  the  proposition 
was  made  to  transfer  the  school  to  its  'fostering  care  and 
patronage.'  And  the  government  accepted  the  grant,  ac- 
cepted as  it  was  tendered,  and  necessarily  for  the  purpose  it 
was  tendered." 

The  right  to  resort  to  extrinsic  evidence,  against  the  con- 
tention of  the  Territory,  was  decided,  but  the  amount  of  aid 
that  the  correspondence  needed  or  received  from  such  evi- 
dence we  explicitly  pointed  out.  We  said  that  the  "justness" 
of  the  conclusion  expressed  in  the  paragraph  quoted  above 
was,  without  extrinsic  evidence,  "almost  indisputable,"  and 
that  it  became  "indisputable  if  extrinsic  evidence  be  con- 
sidered." In  other  words,  it  was  decided  that  the  probative 
force  of  the  correspondence  was  sufficient  without  other  evi- 
dence to  establish  the  agreement  in  accordance  with  the  con- 
tention of  appellants.  The  Supreme  Court  of  the  Territory 
underestimated  this  ruling  and  entered  into  an  extensive  in- 
quiry of  circumstances  from  which  it  decided  the  agreement 
to  be  what  this  court  had  decided  it  not  to  be. 

It  may  be  that  we  could  rest  the  case  on  the  prior  decision 
without  considering  the  new  evidence  which  was  received,  or, 
rather,  the  new  facts  which  are  expressed  in  the  findings  of  the 
Supreme  Court.  But  as  that  learned  court  based  its  decision 
upon  them  and  the  Territory  earnestly  urges  them  as  taking 
this  appeal  out  of  the  ruling  on  the  former  appeal,  we  have 
given  consideration  to  them.  We  cannot,  however,  without 
extending  this  opinion  to  a  great  length,  quote  them  in  full, 
and  will,  therefore,  only  state  their  character  and  what  they 
establish  or  tend  to  establish. 

The  findings  set  forth  the  circumstances  which  preceded 


LOWREY  V.  HAWAII.  563 

215  U.  S.  Opinion  of  the  Court. 

the  transfer  to  the  goverament,  as  exhibited  in  the  observa- 
tions of  Commodore  Wilkes  in  1841,  and  the  report  of  the 
principal  of  the  school  in  1848.  Commodore  Wilkes  observed 
a  defective  and  inefficient  administration  of  the  affairs  of  the 
school  and  its  funds,  which  might  have  been  "avoided"  by 
a  full  examination  of  the  subject  by  "practical  men,"  and  a 
decadence  in  consequence  from  its  "meridian."  The  princi- 
pal's report  personified  the  school  and  made  it  conscious  of 
the  loss  of  admiration,  but  he  said  "she  stands  at  her  post, 
and  is  contented  to  do  good  in  a  more  humble  way  than  when 
the  friends  and  lovers  of  her  youth  stood  by  and  praised  her." 
He  said  that  during  1849  "studies  at  the  institution  were 
practically  broken  up  by  reason  of  various  sicknesses  which 
attacked  the  principal's  family,  and  that,  in  consequence, 
"school  operations  were  suspended  in  February,  and  no  new 
class  entered  pending  the  action  of  the  general  meeting  of  the 
mission,"  and  he  "thought  it  best"  to  await  that  meeting, 
for,  as  he  said,  "the  late  unparalleled  diminution  of  the  popu- 
lation may  also  have  some  effect  in  modifying  the  views  of  the 
mission  in  regard  to  this  school  and  render  it  expedient  in 
their  minds  to  alter  its  operations  or  the  number  of  its  schol- 
ars." If  a  new  class  was  to  be  called,  he  said,  he  had  "a  few 
considerations,  'to  present,'  to  the  brethren  to  guide  them  in 
their  selections."  And  again:  "Many  thousands  of  dollars 
have  been  wasted  or  unprofitably  laid  out  upon  young  men 
sent  there  of  only  middling  ability  and  low  morals.  It  has 
been  with  regret  that  the  teachers  have  had  to  select,  with  a 
few  good  ones,  many  young  men  of  doubtful  talents  and  worth 
to  make  up  a  class  when  they  felt  there  were  enough  in  the 
nation  that  would  do  honor  to  their  training  at  the  semi- 
nary." 

"Besides  these  conditions,"  the  findings  of  the  court  re- 
cite, "and  the  emigration  to  the  gold  fields  of  California,  the 
general  meeting  had  to  face  an  embarrassed  condition  of  the 
funds  of  the  home  board  and  the  consequent  curtailment  of 
the  allowance  to  the  mission.    (From  report  of  committee, 


564  OCTOBER  TERM,  1909. 

Opinion  of  the  Couil;.  215  XT.  8. 

April  25,  1849.)  It  was  under  these  circumstances  that  the 
ofifer  of  transfer  to  the  Hawaiian  government  was  made." 

It  may  be  well  to  comment  on  the  facts  as  we  go  along,  and 
we  may  say  we  see  nothing  in  these  declarations  and  reports 
that  militates  with  the  views  of  the  agreement  expressed  in 
our  former  opinion.  We  see  no  intention  in  them  or  reason 
for  abandoning  the  purpose  for  which  the  school  was  founded. 
Indeed,  intention  and  reason  for  its  better  fulfillment  by  a 
transfer  to  the  government.  The  school  would  receive  more 
constant  support  under  the  government.  The  young  men  of 
"doubtful  ability  and  low  morals"  might  not  seek  its  instruc- 
tion, could  be  more  easily  rejected  if  they  did  so,  and  those 
"in  the  nation  that  would  do  honor  to  their  training  at  the 
seminary"  might  be  attracted  by  the  sanction  which  would  be 
given  to  their  ability  and  morals.  That  this  was  the  hop)e 
which  induced  the  transfer  is  almost  expressed  in  the  corre- 
spondence which  forms  the  agreement. 

This  was  in  effect  declared  in  the  opinion  on  the  first  apn 
peal  and  the  quotation  from  that  becomes  apposite.  Stating 
a  part  of  the  correspondence  which  contained  the  offer  to  the 
government,  we  said  (206  U.  S.  p.  220) : 

"The  Mission  reminds  the  Minister  of  Public  Instruction 
that  the  seminary  was  established  in  1831,  'to  promote  the 
diffusion  of  enlightened  literature  and  Christianity  throughout 
the  islands,'  and  that  it  had  been  unceasingly  watched  over, 
cherished  and  cared  for  by  the  Mission,  and  that  $77,000  had 
been  expended  for  its  benefit.  It  was  stated  that  in  conse- 
quence of  debts  incurred  'in  the  prosecution  of  its  labors  of 
benevolence  and  mercy'  the  American  Board  of  Commisdoners 
of  Foreign  Missions  was  compelled  to  diminish  its  grants  to 
each  of  the  missions  under  its  care,  including  the  Hawaiian 
mission,  and  that  the  latter  for  that  reason  would  be  '  unable 
to  carry  forward  its  operations  with  the  vigor  to  be  desired  in 
all  of  its  departments  of  labor.'  In  view  of  these  facts,  it  was 
stated  and  believed  that  under  the  circumstances  the  transfer 
of  the  institution  '  to  the  fostering  care  and  patronage  of  the 


LOWREY  V.  HAWAII.  5ft5 

216  U.  S.  Opinion  of  the  Court. 

government'  would '  promote  the  highest  interest  of  the  Hawai- 
ian people.'  An  offer  was  then  made  to  transfer  the  seminary 
with  the  conditions  which  we  have  referred  to.  A  confession 
of  faith  was  enclosed.  The  government  modified  the  proposal 
by  reserving  the  right  to  pay  $15,000,  as  an  alternative  to  the 
reversion  of  the  property  to  the  Mission  if  the  government 
should  not  fulfill  the  conditions  of  the  grant.  The  modifica- 
tion was  accepted,  and  in  a  subsequent  communication  a  new 
confession  of  faith  was  substituted  to  that  originally  pro- 
posed." 

And  from  this,  it  followed,  we  further  said,  as  we  have  seen, 
that  the  school  was  established  "'to  perpetuate  the  Christian 
religion,'  "  and  had  purpose,  still  more  definite  and  of  equal  or 
greater  importance,  that  is,  "  'to  educate  yoimg  men  to  be 
Christian  ministers.'  "  And  of  this,  "  the  government  was  in- 
formed of  when  the  proposition  was  made  to  transfer  the 
school  to  its  'fostering  care  and  patronage.'  '* 

There  are,  however,  other  findings  of  fact.  It  is  found  that 
there  was  substituted  for  the  first  confession  of  faith,  which 
was  printed,  a  second  confession  of  faith,  which  was  written. 
In  a  letter  which  accompanied  the  latter  it  stated  that  the 
first  was  "  not  so  distinctive  as  to  prevent  a  barrier  to  the  in- 
troduction there  (in  the  school)  of  other  and  deleterious  doc- 
trines not  specified  in  the  said  confession."  It  is  said  by  the 
Supreme  Court  of  the  Territory  that  it  was  "worthy  of  note" 
that  it  did  not  appear  that  the  "Prudential  Committee"  had 
been  advised  of  the  substitution.  We  think  this  unimportant. 
Even  if  it  did  not,  therefore,  become  a  part  of  the  agreement, 
it  certainly  expressed  the  purpose  of  the  agreement.  It  was, 
however,  considered  by  the  parties  as  a  part  of  the  agreement. 

The  curriculum  of  the  school  from  1835  to  1863  is  inserted 
in  the  findings,  by  which  studies  were  arranged  for  a  course 
of  four  years.    This  appears: 

"The  laws  of  the  high  school  were  read,  amended  and  the 
different  articles  adopted  as  follows: 

"'Whereas  in  the  good  providences  of  God,  the  experiment 


566  OCTOBER  TERM,  1909. 

Opinioii  of  the  Court.  215  U.  8. 

of  the  high  school  established  by  the  mission  in  1831  having 
proved  successful,  and  having  accomplished  all  that  could 
reasonably  have  been  expected,  and  the  necessity  of  such  an 
institution  still  continuing,  the  directors  now  lay  before  the 
mission  a  more  definite  and  enlarged  plan  of  operations,  such 
as  they  suppose  from  actual  experiment  to  be  practicable, 
and  of  the  highest  interests  to  the  moral,  social,  literary  and 
spiritual  condition  of  this  people/  " 

The  design  of  the  high  school  is  set  forth  in  six  chapters, 
which  express  provisions  for  teaching  general  literature  and 
the  sciences,  and  the  following,  being  paragraphs  one  and  four 
and  paragraph  five  of  chapter  one. 

"To  aid  the  Mission  in  accomplishing  the  great  work  for 
which  they  were  sent  hither;  that  is,  to  introduce  and  perpet- 
uate the  reUgion  of  our  Lord  and  Saviour  Jesus  Christ,  with 
all  its  accompanying  blessings,  civil,  literary  and  religious." 

"  4.  Another  object  still  more  definite  and  of  equal  or  greater 
importance,  is,  to  educate  young  men  of  piety  and  promising 
talents,  with  a  view  to  their  becoming  assistant  teachers  of 
religion,  or  fellow  laborers  with  us  in  disseminating  the  gospel 
of  Jesus  Christ  to  their  dying  fellowmen. 

"5.  He  shall  also  watch  over  the  moral  and  spiritual  in- 
terests of  the  scholars;  he  shall  cause  a  portion  of  their  weekly 
studies  to  be  directed  to  the  great  truths  of  the  Bible,  that 
while  they  increase  in  science  and  literature  they  may  have 
the  means  of  that  knowledge  which  makes  wise  unto  salva- 
tion." 

It  is  found,  however,  that "  so  far  as  the  proposed  curriculum 
contemplated  the  preparation  of  graduates  of  the  school  for 
immediate  service  in  the  ministry,  it  was  never  carried  out, 
though  frequently  referred  to  by  contemporaneous  writers  as 
the  eventual  design  of  the  school." 

It  is  further  found  that  the  main  object  of  the  school  from 
1835  to  1839  was  the  education  of  Hawaiian  teachers  for  the 
common  schools.  The  curriculums  of  other  years  are  given, 
and  it  is  found  that,  "after  the  transfer  to  the  govenunent  the 


LOWREY  V.  HAWAII.  567 

215  U.  S.  Opinion  of  the  Court. 

• 

institution  continued  to  be  primarily  for  the  education  of 
teachers  (Report  Minister  Public  Instruction,  1850,  p.  26; 
Report  President  Board  of  Education,  1872,  p.  4),  from  the 
middle  classes  of  the  Hawaiian  people  (Report  President 
Board  of  Education,  1886,  p.  3).  Education  for  the  ministry 
is  not  referred  to  in  any  official  report  as  one  of  the  purposes 
of  the  school,  but  the  most  that  could  be  said  is  the  statement 
by  Rufus  Anderson,  secretary  of  the  A.  B.  C.  F.  M. :  "  A  year 
spent  in  theological  study  with  a  missionary  is  thought  suffi- 
cient to  prepare  a  pious  graduate  of  Lahainaluna  for  the  pas- 
toral office/'    Anderson,  The  Hawaiian  Islands,  p.  189. 

And  there  are  findings  as  to  the  events  of  1863,  1864  and 
1865,  the  principal  of  which  was  the  opinion  of  the  Attorney 
General,  and  a  dispute  between  the  mission  and  the  Board  of 
Education  as  to  the  right  of  appointment  of  teachers. 

The  opinion  of  the  Attorney  General  recognized  that  the 
school  was  received  by  the  government  and  was  held  by  it, 
under  conditions  which,  if  not  performed,  would  require  the 
government  to  reconvey  the  property  or  pay  the  mission  fif- 
teen thousand  dollars. 

The  dispute  over  the  appointment  of  teachers  arose  in 
April,  1865.  In  a  letter  to  the  President  of  the  Board  of  Edu- 
cation the  mission  asserted  the  right  to  appoint,  and  suggested 
the  names  of  certain  persons.  The  Board  of  Education  re- 
plied, asking  for  the  grounds  "  on  which  any  such  claim  to  in- 
terfere in  the  internal  management  of  said  school  appear  to 
you  to  be  founded."  The  mission  replied,  asserting  the  right 
of  appointment  as  a  means  of  accomplishing  the  purpose  of 
the  transfer.  It  was  said  that  nothing  was  "more  evident 
than  that  the  mission  intended  carefully  to  guard  against  the 
introduction  into  the  institution  of  any  doctrine,  practice  or 
influence  antagonistic  to  its  own  faith  and  practice  and  form 
of  Christian  worship."  And  they  asserted,  further,  that 
"nothing  could  be  clearer  than  that  the  missionaries  con- 
templated still  to  have  this  a  co-operating  institution  to  aid 
them,  as  it  had  already  done  in  times  past,  in  the  diffusion  of 


568  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

solid  science,  and  Christianity  as  they  understood  it,  as  benevo- 
lent Congregationalists  and  Presbyterians  of  the  United  States, 
who  had  contributed  to  build  and  sustain  the  institution  un- 
derstood and  practiced  it."  And  it  was  said  that  ^'an  object 
so  dear  to  them  would  not  have  been  given  up  without  the 
intention  of  so  guarding  in  the  future  as  to  have  it  continue 
to  aid  instead  of  defeat  the  purpose  for  which  it  was  founded." 
In  further  emphasis  of  this  intention  the  writer  of  the  letter 
said  that  he  knew  "that  the  intention  was  to  secure  the  con- 
tinued co-operation  of  the  seminary  in  the  work  which  the 
American  Board  was  prosecuting"  there  "through  its  mis- 
sion." The  Board  of  Education  admitted  that  the  institu- 
tion was  to  be  continued  so  as  to  "aid  instead  of  defeating 
the  purpose  for  which  it  was  founded,"  and  said,  "Nothing 
had  been  done  to  justify  the  intimation  that  the  board"  had 
"any  desire  to  defeat  such  purpose  or  introduce  any  doctrine, 
practice  or  influence  antagonistic  to  the  faith,  practice  and 
forms  of  worship  of  the  founders."  The  board  dissented  from 
the  view  expressed  by  the  mission,  that  the  appointment  of 
any  man  not  acceptable  to  it  to  the  post  of  teacher  was  a 
"violation  of  the  whole  spirit  of  the  agreement,"  and  said  that 
a  full  compliance  of  the  agreement  consisted  "in  appointing 
persons  teaching  in  the  doctrine  and  after  the  manner  of  the 
Congregational  and  Presbyterian  churches  of  the  United 
States."  The  board  concluded  by  saying  that  they  were 
aware  that  if  they  did  not  see  fit  to  carry  on  the  institution  ac- 
cording to  the  terms  of  the  contract,  they  had  to  reeonvey  it 
or  to  pay  the  sum  of  $15,000,  and  that  if  the  views  expressed 
were  not  satisfactory,  the  board  would  think  favorably  of  a 
proposition  to  reeonvey  it  at  once. 

It  will  be  seen,  therefore,  that  from  the  agreement,  as 
gathered  from  the  correspondence  and  from  the  extrinsic  evi- 
dence which  we  have  detailed,  there  can  be  no  doubt  that  the 
school  was  transferred  by  the  mission  and  accepted  by  the 
government  upon  the  condition  that  definite  Christian  doc- 
trines should  be  taught,  namely,  doctrines  which  constituted 


LOWREY  V.  HAWAII.  569 

215  IJ.  S.  Opinion  of  the  Court. 

the  belief  of  the  Congregational  and  Presbyterian  churches 
of  the  United  States  and  not  merely  some  form  of  general, 
evangelical  Christianity. 

Religious  instruction,  "represented  by  the  second  or  sub- 
stituted confession  of  faith/'  according  to  finding  23,  was  con- 
tinued from  1875  to  1877. 

In  December,  1876,  upon  the  reconmiendation  of  Dr. 
Bishop,  a  change  was  made  from  the  Hawaiian  to  English  as 
a  medium  of  instruction,  comment  upon  which  will  be  pres- 
ently made.  We  omit,  as  not  important,  the  curriculum  as 
to  secular  studies  after  1877.  The  findings  as  to  religious  in- 
struction must,  however,  be  given  in  full : 

"There  is  no  evidence  that  the  substituted  confession  of 
faith  was  in  use  at  Lahainaluna  as  a  creed,  doctrine  or  standard 
of  religious  instruction  at  any  period.  There  is  no  evidence  of 
any  formal  creed  as  a  standard  to  which  the  pupils  were  re- 
quired or  instructed  to  adhere. 

"  (29)  From  1877  until  the  present  date  the  course  of  re- 
ligious instruction  has  been  substantially  the  same.  This  in- 
cludes morning  prayer,  including  occasional  discussions  of 
passages  of  the  scripture,  compulsory  attendance  at  Sunday- 
school  with  preparation  of  the  international  Sunday-school 
lessons  furnished  by  the  Hawaiian  board  itself,  and  compul- 
sory attendance  at  Christian  Endeavor  exercises  Sunday  even- 
ings, at  which  the  pupils  discuss  biblical  subjects  based  on  the 
Christian  Endeavor  topic  as  given  in  the  Christian  Endeavor 
World.  Nothing  in  this  religious  teaching  is  contrary  to  any 
religious  tenet  or  doctrine  expressed  in  the  substituted  con- 
fession of  faith.  Mr.  Macdonald,  who  has  been  principal  since 
1903,  testifies  that  no  creed  had  been  taught  during  that  time 
at  the  school,  but  that  he  had  tried  to  make  upright,  truthful 
Christian  men,  and  held  Christ  up  as  the  best  example  to  fol- 
low ;  that  he  had  taught  nothing  about  the  Pope,  or  the  doc- 
trine of  the  trinity,  or  the  doctrine  of  Adam's  fall,  or  that  the 
descendants  of  Adam  were  without  holiness  and  alienated  from 
God  until  their  hearts  were  renewed  with  divine  grace;  that  on 


570  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

Sunday  there  was  a  Sunday-school  and  occasionally,  in  the 
morning,  a  preaching  service,  in  the  evening  a  Christian  En- 
deavor meeting;  that  the  first  year  he  was  in  Lahainaluna  the 
boys  were  allowed  to  go  to  Lahaina  to  their  own  churches,  but 
since  then,  with  the  exception  of  the  day  scholars  numbering 
ten  or  twelve,  they  were  required  to  stay  on  the  ground  on 
Sunday  and  attend  Sunday-school  and  the  evening  exercises; 
that  the  chapel  exercises  on  week  day  mornings  lasted  about 
ten  minutes  and  consisted  of  a  hymn,  a  portion  of  the  scripture 
and  a  repeating  of  the  Lord's  Prayer  in  unison,  and  occasion- 
ally incidental  remarks  by  the  principal  regarding  the  passage 
of  the  scripture ;  that  there  was  no  direct  Christian  instruction 
given  in  the  class  room  exercises  during  the  week  days  other 
than  moral  instruction,  as  teaching  the  boys  to  do  their  work 
honestly;  that  the  Sunday  morning  exercises  consisted  of  a 
regular  system  of  Bible  instruction  following  the  interna- 
tional Sunday-school  lesson  series  purchased  from  the  Ha- 
waiian Board;  that  the  Sunday-school  lessons  were  assigned 
in  advance;  that  in  the  Christian  Endeavor  meetings  the 
Christian  Endeavor  topic  in  a  modified  form  as  given  in  the 
Christian  Endeavor  World  was  usually  taken,  and  prayers 
sometimes  offered  by  the  boys  and  the  teachers. 

*'  (30)  There  is  no  evidence  of  any  protest  with  regard  to 
Lahainaluna  or  the  course  of  study  there  from  the  American 
Board  or  from  the  Hawaiian  Evangelical  Association  as  bodies, 
but  first  objection  is  from  the  plaintiffs  who  are  trustees  of 
certain  property  rights  under  deed  from  the  American  Board." 

It  is  further  found  that  "technical  and  agricultural  train- 
ing have  been  prominent  features  of  the  school  for  over  half 
of  a  century,  and  the  emphasis  laid  on  agricultural  work  in 
the  past  few  years  does  not  amount  to  a  change  in  kind,  but 
one  in  degree.  There  has  been  no  change  in  the  official  desig- 
nation of  the  school." 

In  1903  there  was  a  movement  to  obtain  the  Federal  aid 
available  for  agricultural  colleges,  in  connection  with  which 
the  Deputy  Attorney  General  gave  an  opinion  as  to  the 


LOWREY  V,  HAWAII.  571 

215  U.  S.  Opinion  of  the  Court. 

character  of  the  school,  the  conditions  upon  which  the  gov- 
enunent  of  Hawaii  had  received  it  and  the  effect  of  the  pro- 
visions of  the  Organic  Act  of  the  Territory,  that  "no  public 
money  be  appropriated  ...  for  the  support  or  benefit 
of  any  sectarian,  denominational  or  private  school."  The 
opinion  is  quoted  at  length  in  the  findings,  but  we  are  only 
concerned  with  parts  of  it.  It  recognizes  that  the  school  was 
received  upon  the  condition  of  cultivating  sound  literature 
and  solid  science.  This,  it  was  said,  was  affirmative  and  could 
not  be  escaped.  The  provision  for  religious  instruction,  he 
declared,  was  negative,  and  was  satisfied  by  no  religious 
teaching  whatever.  His  conclusion  was,  and  we  quote  his 
words,  "So  long  as  the  government  maintains  this  school  it 
shall  not  teach  any  doctrine  contrary  to  the  confession  of 
faith,  but  it  is  not  compelled  to  teach  any  religious  doctrine 
whatever,  and  therefore,  in  my  opinion  cannot  be  held  to  be 
a  sectarian  institution."  And  further,  "that  the  school  is  not 
a  sectarian  institution  under  the  prohibition  stated  in  sec- 
tion 55  of  the  Organic  Act." 

As  we  have  said,  the  Supreme  Court  of  the  Territory  gave 
especial  prominence  to  the  ruling  on  extrinsic  evidence,  and 
made  it  contradictory  to  the  agreement  as  expressed  in  the 
correspondence.  This  result  was  worked  out,  as  it  seems  to 
us,  by  giving  too  much  effect  to  the  curriculum  of  the  school 
after  1877.  That,  indeed,  might  be  considered  as  tending  to 
show  that  the  agreement  had  been  abandoned  or  its  con- 
ditions waived,  but  not  that  it  did  not  exist.  To  this  propo- 
sition of  abandonment  or  waiver  we  then  will  address  our- 
selves, and  as  relevant  to  it  the  views  of  the  Supreme  Court 
of  the  Territory  may  be  given.  They  are  exhibited  in  the 
following  paragraphs  (pp.  146,  147) : 

"Under  the  decision  of  the  United  States  Supreme  Court 
we  are  to  construe  the  condition  of  transfer  in  the  light  of  the 
circumstances  which  preceded  it  and  the  immediate  and  long 
continued  practice  imder  it.  Confining  ourselves  for  the  pres- 
ent to  the  condition  respecting  religious  instruction  reading, 


672  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

'  It  shall  not  teach  or  allow  to  be  taught  any  religious  tenet  or 
doctrine  contrary  to  those  heretofore  inculcated  by  the  mis- 
sion which  we  represent,  a  summary  of  which  will  be  foimd  in 
the  confession  of  faith  herewith  enclosed,'  the  following 
possible  constructions  of  the  language  may  be  considered: 

"  (1)  That  the  condition  is  purely  negative  in  character  and 
does  not  require  the  teaching  of  any  religious  doctrine.  This 
construction  is  precluded  by  the  decision  of  the  United  States 
Supreme  Court. 

"  (2)  That  the  contents  of  the  confession  of  faith  should  be 
taught  as  a  formal  doctrine  or  creed.  There  is  no  evidence 
that  the  parties  ever  acted  upon  this  interpretation.  No  evi- 
dence has  been  presented  that  the  substituted  confession  of 
faith  was  in  use  at  Lahainaluna  as  a  creed,  doctrine  or  stand- 
ard of  religious  instruction  at  any  period.  Dr.  Bishop,  who 
was  in  the  school  from  1865  until  1877,  testified  that  he  had 
never  seen  it.  (Transcript,  p.  13.)  In  fact,  there  is  no  evi- 
dence of  any  formal  creed  as  a  standard  to  which  the  pupils 
were  required  or  instructed  to  adhere. 

"  (3)  That  religion  should  be  taught  and  that  as  taught  it 
should  not  be  contrary  to  the  doctrines  mentioned.  Thus 
construed  it  is  obvious  that  it  allows  considerable  latitude  in 
the  amount  of  religious  instruction.  If  it  means  that  theology 
shall  form  part  of  the  curriculum  of  the  school  the  condition 
was  broken  as  early  as  1877  and  any  action  thereon  is  long 
since  barred  by  the  statute  of  limitations  applicable  to  claims 
against  the  government.  R.  L.  Sec.  2004;  Hartman  v.  United 
StateSj  35  C.  CI.  106.  If,  however,  the  acts  and  statements 
of  the  parties  in  1865  are  to  be  relied  upon  as  contempora- 
neous construction  the  same  must  be  true  of  the  acts  of  the 
parties  in  1877  and  from  thence  to  the  present  day.  The 
fact  that  the  change  from  Hawaiian  to  English  as  a  medium 
of  instruction  necessarily  involved  the  discontinuance  of  ab- 
stract studies  of  a  theological  nature  is  obvious.  The  fact 
that  this  change  was  made  upon  the  recommendation  of 
Dr.  Bishop  and  with  the  full  acquiescence  of  all  concerned 


LOWREY  V.  HAWAII.  573 

215  XJ.  8.  Opinion  of  the  Court. 

from  1877  until  1903  is  surely  as  potent  as  the  actions  of  the 
parties  during  the  preceding  years.  To  the  present  day  there 
has  been  no  protest  from  the  American  Board  or  from  the 
Hawaiian  Evangelical  Association  as  bodies,  but  the  first  ob- 
jection is  from  the  plaintiffs  who  are  trustees  of  certain  prop- 
erty rights  under  deed  from  the  American  Board,  the  terms 
of  which  will  be  more  fully  considered  later. 

"Unless  the  condition  prescribes  the  amount  and  extent  of 
religious  instruction  it  has  not  been  broken.  From  1877  until 
the  present  date  the  course  of  religious  instruction  has  been 
substantially  the  same." 

The  first  proposition,  the  court  said,  was  precluded  by  our 
first  decision;  of  the  other  two,  the  court  felt  free  to  exercise 
its  judgment.  In  this  it  committed  error.  We  have  shown 
how  antagonistic  the  contention  of  the  parties  were,  and  we 
tried  to  be  clear  in  our  decision  of  them.  We  did  more  than 
decide  that  the  condition  as  to  religion  was  not  negative. 
We  gave  it  more  force  than  simple  inhibition  of  teaching 
something  which  was  not  inconsistent  with  the  religion  of  the 
mission.  We  gave  it  the  force  of  a  requirement  to  teach  that 
religion,  and  more,  to  educate  young  men  to  teach  it.  The 
Supreme  Court,  however,  says  that  there  is  no  evidence  that 
the  parties  ever  acted  upon  the  interpretation  "that  the  con- 
tents of  the  confession  of  faith  should  be  taught  as  a  formal 
doctrine  or  creed."  Exactly  what  is  meant  by  the  words 
"formal  doctrine  or  creed"  is  not  clear,  but  if  they  mean  the 
religion  of  the  mission,  the  conclusion  was  not  open  to  the 
court  to  draw  nor  do  the  findings  sustain  it.  Dr.  Bishop  tes- 
tified, it  is  true,  that  he  had  never  seen  the  confession  of  faith 
until  it  was  shown  in  the  present  case,  but  he  also  testified 
that  "the  system  of  doctrine  which  was  taught  was  substan- 
tially the  old  orthodox.  Congregational  or  Presb3^erian  doc- 
trine." As  to  the  confession  of  faith,  he  said,  "that  it  very 
well  represented  the  form  of  doctrine  taught  at  Lahainaluna." 
Nor  do  we  draw  the  same  conclusion  from  the  change  from 
Hawaiian  to  English  as  a  medium  of  instruction  that  the  Su- 


574  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

preme  Court  drew.  Dr.  Bishop  did  recommend  the  change, 
and  he  expressed  a  fear  that  the  consequences  might  be  an 
omission  of  studies  of  an  abstract  nature,  in  which  he  included 
"evidences  of  Christianity;"  but  he  suggested  such  instruction 
could  be  committed  to  the  "  exceptionably "  able  Hawaiian 
teacher  whom  he  mentioned.  But  there  is  nothing  in  that  to 
show  that  a  definite  form  of  religion  could  not  be  taught.  There 
might  be  difficulty  in  it,  of  course,  but  that  such  a  difficulty 
could  not  be  overcome  would  take  all  purpose  or  justification 
from  missionary  societies.  Besides,  because  the  school  met  dif- 
ficulties, and  might  have  to  yield  temporarily  to  them  for  vary- 
ing periods  of  time,  cannot  be  considered  as  conclusive  of  the  in- 
tention of  the  parties  to  abandon  the  purpose  expressed  in  the 
agreement  or  to  waive  its  obligations.  And  this  is  an  answer 
to  the  other  contentions  of  the  Territory.  That  the  mission 
would  encounter  difficulties  in  its  way  was  no  doubt  guessed 
when  the  school  was  founded.  It  was  demonstrated  by  trial. 
For  the  better  execution  of  the  purpose  of  its  foundation,  the 
mission  transferred  it  to  the  government.  The  government, 
too,  met  difficulties.  Its  duty  was  to  strive  against  them, 
overcome  them  if  possible,  not  to  make  them  a  reason  to  vio- 
late its  contract.  But  it  is  said  by  the  Supreme  Court  that  if 
the  condition  be  "that  theology  shall  form  part  of  the  cur- 
riculum of  the  school,  the  condition  was  broken  as  early  as 
1877,  and  any  action  thereon  is  long  since  barred  by  the  stat- 
ute of  limitations  applicable  to  claims  against  the  govern- 
ment." This  might  be  if  the  obligation  of  the  government 
had  been  to  pay  money  simply.  Its  obligation  was  not  that, 
as  we  have  seen,  but  to  perform  a  trust  expressly  assumed  by 
it.  In  other  words,  it  was  the  grantee  of  an  estate  upon  con- 
dition, having  the  right,  however,  to  elect  to  pay  $15,000  as 
an  alternative  of  the  performance  of  the  condition.  We  find 
no  evidence  of  such  election  in  what  occurred  in  1877,  nor 
indeed  long  subsequently  to  that  date.  The  circumstances 
must  be  kept  in  mind  and  the  relation  of  the  parties.  The 
government  had  received  a  gift  of  valuable  property,  the 


LOWREY  V.  HAWAII.  575 

215  U.  S.  Opinion  of' the  Court. 

product  of  voluntary  contributions.  It  was  given  and  re- 
ceived for  a  special  purpose,  the  purpose  for  which  the  con- 
tributions were  made.  The  government  accepted  it  and 
pledged  its  faith  for  the  execution  of  the  purpose,  a  faith,  we 
may  assume,  which  was  as  much  relied  on  as  the  sanctions 
which  accompanied  it.  It  is  not  possible  to  believe  that  the 
government  had  so  little  sense  of  its  obligations  that  if  it 
had  intended  to  depart  from  its  agreement  it  would  not  have 
offered  to  reconvey  the  property  or  tender  the  execution  of 
the  alternative  which  it  had  reserved;  and  we  certainly  can- 
not hold  that  a  mere  change  in  the  course  of  studies,  which 
might  have  temporary  excuse,  instantly  acted  to  make  the 
grantors  of  the  property  a  claimant  for  money  against  whom 
the  statute  of  limitations  would  immediately  begin  to  run. 
The  government's  right  should  not  be  overlooked  in  this 
connection.  The  following  is  the  condition  expressed  in  the 
proposal  made  to  the  government:  "That  in  case  of  the  non- 
fulfillment or  violation  of  the  conditions  upon  which  this 
transfer  is  made  by  the  said  government,  the  whole  prop- 
erty hereby  transferred,  hereinbefore  specified,  together  with 
any  additions  or  improvements  which  may  have  been  made 
upon  the  premises,  and  all  the  rights  and  privileges  hereby 
conveyed  or  transferred  to  the  Hawaiian  government,  by  the 
said  island  mission,  shall  revert  to  the  said  mission,  to  have 
and  to  hold  the  same  for  and  in  behalf  of  the  American  Board 
of  Commissioners  of  Foreign  Missions."  The  acceptance  of 
the  government  was  as  follows:  "That  in  case  of  non- 
fulfillment on  the  part  of  the  government  of  the  conditions 
specified  it  shall  be  optional  with  this  government  to  allow 
the  institution,  with  all  additions  and  improvements  which 
may  have  been  made  upon  the  premises,  and  all  rights  and 
privileges  connected  therewith,  to  revert  to  the  said  mission 
or  pay  the  sum  of  $15,000."  The  onus,  therefore,  was  upon 
the  government  to  act,  not  upon  the  mission.  To  avert  the 
reversion  of  the  property  to  the  mission  a  way  was  provided, 
but  it  did  not  enter  into  the  head  of  anybody  that  by  a  fail- 


576  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

ure  to  adopt  it  instantly  upon  a  change  of  studies  the  prop- 
erty passed  back  to  the  grantor.  But  such  was  the  inevitable 
result  if  there  was  a  breach  of  the  conditions  in  1877,  and 
such  was  the  result  if  there  was  a  breach  later  than  1877.  It 
might  be  contended  that  such  result  would  not  ensue  with- 
out some  action  upon  the  part  of  the  mission.  But  it  was  cer- 
tainly optional  with  the  mission  to  treat  the  breach,  if  there 
was  a  breach,  as  a  forfeiture.  It  is  said  in  Hvbbard  v.  Httb- 
bard,  97  Massachusetts,  188,  that  it  is  optional  with  the 
grantor  of  an  estate  upon  condition,  in  case  the  breach  of  the 
condition  occurs,  whether  he  will  avail  himself  of  the  same  as 
a  forfeiture  of  the  estate.  To  do  so,  it  is  further  said,  requires 
action  on  his  part,  and,  if  he  is  not  in  possession,  usually  re- 
quires entry  for  breach  of  condition.  Until  such  entry  the 
grantee  holds  his  estate  liable  only  to  be  defeated,  but  it  is  not 
actually  determined  by  the  forfeiture. 

It  is  said  in  Carbon  Block  Coal  Co.  v.  Murphy  et  al.,  101 
Indiana,  115,  117,  118:  "'A  condition  may  be  waived  by  the 
one  who  has  a  right  to  enforce  it,  .  .  .  But  a  mere  silent 
acquiescence  in,  or  parol  assent  to,  an  act  which  has  consti- 
tuted a  breach  of  an  expressed  condition  in  a  deed,  would  not 
amount  to  a  waiver  of  a  right  of  forfeiture  for  such  breach.' 
Lindsey  v.  Lindsey,  45  Indiana,  552,  p.  567;  2  Washb.  Real 
Prop.  16.  A  mere  indulgence  is  never  construed  into  a  waiver 
of  a  breach  of  condition.  Gray  v.  Blanchard,  8  Pick.  284; 
Jackson  v.  Crysler,  1  Johns.  Cases,  125." 

In  Trustees  of  Union  College  v.  City  of  New  York,  173  N.  Y. 
38,  a  deed  conveying  land  to  Long  Island  Qty  for  the  purpose 
of  building  a  city  hall  contained  the  provision  that  if  the  land 
should  cease  to  be  used  for  such  or  other  similar  buildings 
the  land  should  revert  to  the  grantor  as  if  the  conveyance  had 
not  been  made,  was  held  to  be  a  condition  subsequent  and 
required  the  grantee  to  comply  therewith  within  a  reasonable 
time.  It  was  further  held  that  ten  years  was  a  reasonable 
time  for  compliance  with  the  covenant,  and  that  the  fact 
that  the  grantor  did  not  assert  a  right  to  reenter  for  fifteen 


LOWREY  V.  HAWAII.  577 

215  U.  S.  Opinion  of  the  Court. 

years  after  the  breach  did  not  operate  as  an  estoppel  or  pre- 
clude him  from  insisting  upon  a  forfeiture  and  claiming  pos- 
session. It  was  also  held  that  a  grantor  was  not  compelled 
to  demand  performance  before  bringing  action  of  ejectment. 
The  court  said  (p.  42) ; 

"The  condition  was  the  use  and  the  continuing  use  of  the 
land  for  the  purpose  of  the  grant.  The  long-continued  si- 
lence of  the  plaintiff  could  not  operate  as  an  estoppel  upon, 
or  preclude,  it  from  insisting  upon  a  forfeiture,  and  from 
claiming  possession  of  the  premises.  The  effect  of  an  express 
condition  in  a  deed  cannot  be  destroyed  by  silent  acquies- 
cence. {Jackson  v.  Crysler,  1  Johns.  Cases,  125.)  The  title  to 
the  property  was  vested  in  the  grantee  and  the  plaintiff  was 
entitled  to  assume  that  its  grantee  would  comply  with  the  con- 
dition of  the  grant.  If  it  elected  to  await  compliance  as  long 
as  it  did,  that  fact  cannot  be  construed  against  its  right  to 
reclaim  possession." 

In  AUhea  Coleman  v.  Ralph  Whitney  et  al.,  62  Vermont,  123, 
a  mortgage  deed  was  executed  by  a  husband,  the  condition  of 
which  was  a  promise  to  support  the  wife  of  the  grantor  during 
her  life.  The  condition  was  performed  for  a  time  and  then 
violated.  The  wife  brought  suit  to  obtain  a  maintenance 
from  the  mortgaged  premises.  It  was  held  that  she  was  en- 
titled to  such  relief,  notwithstanding  there  had  been  successive 
conveyances  of  the  property,  and  the  successive  owners  had 
occupied  the  premises  tmder  their  deeds,  and  had,  in  no  way 
recognized  her  rights;  and  it  was  held  further,  that  the  obliga- 
tion to  support  the  wife  was  a  continuing  one,  and  that  "the 
lapse  of  fifteen  years  without  receiving  support,  simply  be- 
cause she  did  not  ask  it,  would  be  no  bar.'' 

It  was  said  in  Oliver  et  al.  v.  Piatt,  3  How.  333,  411,  that  the 
mere  lapse  of  time  constitutes  of  itself  no  bar  to  the  enforce- 
ment of  a  subsisting  trust;  and  time  begins  to  run  against  a 
trust  only  from  the  time  when  it  is  openly  disavowed  by  the 
trustee,  who  insists  upon  an  adverse  right  and  interest,  which 
is  fully  and  unequivocally  made  known  to  the  cestui  que  trusts. 
VOL.  ccxv — 37 


578  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

In  Tynan  v.  Warren,  63  N.  J.  Eq.  313,  321,  Vice  Chancellor 
Green,  speaking  for  the  court,  said :  "  I  do  not  understand  that 
mere  delay  in  bringing  a  suit  will  deprive  a  party  of  his  remedy, 
unless  such  neglect  has  so  prejudiced  the  other  party  by  loss 
of  testimony  or  means  of  proof,  or  changed  relations  that  it 
would  be  unjust  to  now  permit  him  to  exercise  his  right."  It 
is  certain  that  none  of  those  conditions  appear  in  the  present 
case.  A  mere  change  of  the  curriculum  was  not  of  itself  an 
unequivocal  disavowal  of  the  trust,  or  an  assertion  of  adverse 
right  or  interest  in  the  government,  and  we  find  nothing  in  the 
record  tantamount  to  such  disavowal  and  assertion  until  the 
Governor  of  the  Territory  and  the  Superintendent  of  Public 
Instruction  refused  the  demand  of  the  plaintiffs'  attorney  to 
either  pay  the  $15,000  or  reconvey  the  property.  The  grounds 
of  their  refusal  we  are  not  informed  of,  but  it  was  a  disavowal 
of  the  trust  and  a  denial  of  the  alternative  obligation  to  pay 
the  money.  The  right  of  election  in  the  Territory  then  passed 
to  the  plaintiffs,  appellants  here,  and  the  bringing  of  the  action 
was  a  sufficient  exercise  of  it. 

It  is  finally  contended  that  the  appellant  cannot  maintain 
this  action.  The  Supreme  Court  of  the  Territory  sustained 
this  contention,  saying,  however,  that  it  based  its  "decision 
upon  the  consideration  of  the  substantial  rights  involved." 
The  right  of  the  plaintiffs  is  derived  from  a  deed  executed 
July  25,  1903,  by  the  American  Board  of  Commissioners  for 
Foreign  Missions  to  the  plaintiffs  as  "trustees."  It  recites 
that  the  grantor  is  desirous  of  contributing  to  the  support  and 
maintenance  of  the  Board  of  Hawaiian  Evangelical  Associa- 
tion, an  eleemosynary  corporation  organized  and  established 
"in  the  great  work  of  propagating  Protestant  Christianity, 
and  for  that  purpose  the  land  and  property  particularly  de- 
scribed and  referred  to  was  conveyed  in  trust  in  order  to  assist 
said  intended  beneficiary  to  effectually  carry  out  its  corporate 
powers  and  purposes  in  said  Hawaiian  Islands."  The  instru- 
ment revokes  and  annuls  all  powers  of  attorney  and  gntnts  of 
authority  theretofore  given  to  any  person  or  persons  whomso- 


LOWREY  V.  HAWAII.  679 

215  XJ.  8.  Opinion  of  the  Court. 

ever,  and  gives,  grants,  bargains  and  sells,  conveys  and  con- 
firms, unto  F.  J.  Lowrey,  Henry  Waterhous  and  William  O. 
Smith  certain  lands  described  in  the  schedule  annexed  to  the 
instrument,  together  with  ''  all  other  lands  in  the  possession  of 
or  belongmg  to  the  said  grantor  or  to  which  said  grantor  has 
right,  title,  interest,  claim  or  demand  whatsoever,  at  law  or  in 
equity,  and  whether  held  by  it  in  fee  simple,  as  lessee  thereof, 
beneficiary  therein,  or  otherwise,  as  fully  and  to  all  intent  and 
purpose  as  though  a  particular  description  thereof  was  herein 
incorporated  and  included  in  said  schedule  ..."  to  have 
and  to  hold  the  same  ''  in  trust,  nevertheless  for  the  following 
uses  and  purposes,  that  is  to  say :  First.  To  hold,  manage  and 
control  the  same,  and  receive  and  take  the  rents,  issues,  profits, 
income  and  proceeds  of  sales  and  authorized  mortgages  thereof, 
and  hold  such  increment  and  realizations  under  the  same 
trusts  as  the  above  granted  trust  property,  using  and  ap- 
plying the  same,  however,  in  the  manner  hereinafter  pro- 
vided. .  .  Sixth.  And,  generally  to  do  and  perform  every 
act  and  thing  and  exercise  every  power  and  authority  whatso- 
ever, not  herein  specificaUy  denied  or  withheld  from  or  herein 
directed  to  be  otherwise  done  or  exercised  by  said  trustees,  as 
fully  and  to  every  intent  and  purpose  as  though  the  sidd 
trustees  were  the  absolute  owners  in  fee  in  their  own  personal 
right  of  the  property  hereby  conveyed.  Seventh.  Any  and 
aU  moneys  arising  from  or  out  of  the  property  of  the  trust  es- 
tate, whether  by  way  of  rents  or  other  issues  and  income  or 
from  sales  or  mortgages  thereof,  shall  be  received  and  held  by 
said  trustees;"  and,  after  the  pajrment  of  taxes  and  other 
expenses,  "and  until  otherwise  directed,"  by  the  grantor, 
shall  be  delivered  "to  said  beneficiary,  from  time  to  time,  any 
balance  or  portion  of  the  moneys,  then  remaining  in  their 
hands  over  and  above  what  may,  in  their  judgment,  be  re- 
quired for  the  current  expenses  connected  with  the  said  trust, 
any  unapplied  balance  to  be  placed  on  general  deposit,  or  the 
said  trustees  may  invest  the  same  upon  security  as  they  may 
approve," 


680  (XrrOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

And  the  grantor  reserved  ''the  full  right  and  authority,  at 
any  time  or  times,  to  direct  any  change  or  alteration  in  the 
disposition  of  the  income  and  proceeds  of  the  trust  estate/' 
or  to  remove  any  trustee  or  fill  any  vacancy  however  occurring. 

It  will  be  observed,  therefore,  that  the  instrument  was  de- 
signed to  convey  every  interest  in  property  that  the  grantor 
had.  C!onsidering  its  language  and  careful  provisions,  its  pur- 
poses and  the  control  reserved  to  the  grantor  of  the  trust  and 
the  disposition  of  funds,  it  would  be  a  narrow  construction  of 
it  to  hold  that  the  interest  pf  the  grantor  in  the  TAhainaluna 
school  did  not  pass  by  it,  whether  such  interest  was  a  right  to 
receive  a  conveyance  of  the  school  or  of  the  $15,000  which  was 
to  be  in  lieu  of  such  conveyance.  In  other  words,  to  com- 
pletely enforce  the  rights  and  interests  of  the  mission  in  the 
school  and  devote  it  or  the  proceeds  from  it  to  the  purposes 
of  the  trusts  which  were  created. 

The  judgment  is  reversed  and  ihe  cause  is  remanded  with  dir 
rections  to  enter  judgment  for  appellants  as  prayed  for. 

Mr.  Justice  Brbwer  took  no  part  in  the  decision. 


^ 

i 


UNITED  STATES  v.  SHIPP. 

INFORMATION  IN  CONTEMPT. 

No.  4.    Qrigiiial  [No.  5,  original,  of  October  Term,  1908].   Opinion  de- 
livered June  1,  1909. — Sentence  pronounced  November  15,  1909.^ 

On  June  1,  1909;  after  the  opinion  and  judgment  of  the 
court  (214  U.  S.  403)  were  delivered,  The  Solidior  Oeneral 
moved  in  open  court  for  sentence,  and  thereupon  the  de- 
fendants Shipp,  Gibson,  Williams,  Nolan,  Padgett  and  Mayes, 
moved  for  leave  to  present  petition  for  rehearing  and  the 

court  ordered  that  they  be  allowed  thirty  days  to  present  a 

I      ■-  —      ■■-        ■-■...     ..     ■■ 

^  For  a  full  report  of  the  proceedings  in  this  case  see  214  U.  S.  386. 


UNITED  STATES  v.  SHIPP.  681 

215  U.  S.  Judgment  of  the  Court. 

motion  for  leave  to  file  a  petition  for  rehearing  and  that  they 
be  remanded  to  custody  to  be  released  on  their  respective 
recognizances  in  $1,000  each  to  be  taken  by  the  District 
Judge  of  the  United  States  for  the  Eastern  District  of  Ten- 
nessee. On  June  7,  1909,  a  certificate  of  the  sidd  judge  that 
such  recognizances  had  been  taken  was  filed  in  this  court. 

The  motions  for  leave  to  file  petitions  for  rehearing  were 
received  by  the  clerk  of  this  court  during  vacation  (June  1- 
October  11, 1909) .  November  1, 1909.  Leave  to  file  petitions 
for  rehearing  denied  and  the  above  named  six  defendants 
ruled  to  appear  for  judgment  on  November  15,  1909. 

On  November  15,  1909,  Mr.  SoliciUrr  General  Bowers  an- 
nounced to  the  court  that  the  said  six  defendants  were 
present  in  court  in  response  to  the  rule  issued  against  them, 
and  asked  that  sentence  be  pronounced. 

These  defendants  were  then  called  to  the  bar  by  the  clerk. 

The  Chief  Justice  announced  the  judgment  of  the  court  as 
follows: 

You,  Joseph  F.  Shipp,  Jeremiah  Gibson,  Luther  Williams, 
Nick  Nolan,  Henry  Padgett  and  William  Mayes,  are  before 
this  court  on  an  attachinrat  for  contempt. 

On  return  to  a  rule  to  show  cause  you  have  presented  such 
evidence  as  you  were  advised  and  been  fully  heard  orally  and 
on  printed  briefs,  and  after  thorough  consideration  you  have 
been  found  guilty.  You  have  also  been  permitted  severally 
to  present  petitions  for  rehearing  and  move  that  leave  be 
granted  to  file  them,  which  after  consideration  have  been 
denied. 

The  grounds  upon  which  the  conclusion  was  reached  are 
set  forth  in  the  opinion  filed  herein  on  Monday,  May  24, 1909, 
and  need  not  be  repeated,  nor  need  we  dwell  upon  the  de- 
structive consequences  of  permitting  the  transaction  com- 
pMned  of  to  pass  into  a  precedent  for  unpunished  contempt. 

It  is  considered  by  the  court,  and  the  judgment  of  the  court 
is,  that  as  punishment  for  the  contempt  you,  Joseph  F. 


582  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  8. 

Shipp,  Luther  Williams  and  Nick  Nolan,  and  each  of  you, 
be  imprisoned  for  the  period  of  ninety  days,  and  that  you, 
Jeremiah  Gibson,  Henry  Padgett  and  William  Mayes,  and 
each  of  you,  be  imprisoned  for  the  period  of  sixty  days,  in 
the  jail  of  the  District  of  Columbia.  The  marshal  of  this 
court  is  charged  with  the  execution  of  this  judgment. 

November  17,  1909,  the  marshal  filed  a  return  that  the 
judgment  of  the  court  had  been  executed  according  to  the 
tenor  thereof.  ^ 


^m*' 


Mackenzie  v.  Mackenzie. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OP  ILLINOIS. 

No.   405.    Motion  to  dismiss  submitted   October   11,    1909. — ^Decided 

October  18,  1909. 

A  writ  of  error  to  review  the  judgment  of  the  highest  court  of  a  State 

dismissed  for  want  of  jurisdiction  without  opinion. 
Writ  of  error  to  review  238  Illinois,  616,  dismissed. 

Mr.  R.  G.  Dyrenforth  for  the  plaintifF  in  error. 
Mr.  Harris  F.  WiUiams  for  the  defendant  in  error. 
Per  Curiam.    Dismissed  for  want  (A  jurisdiction. 


RAND,  McNALLY  &  CO.  v.  KENTUCKY. 

ERROR  TO  THE  COURT  OP  APPEAI^  OP  THE  STATE  OP  KENTUCKY. 

No.  136.    Motion  to  dismiss  or  affinn  submitted  October  la,  1909.— 

Decided  November  1,  1909. 

A  judgment  of  the  state  court  affirmed  without  opinion  on  authorily 

of  previous  decisions. 
32  Ky.  Law  Rep.  1168,  affirmed. 


STRONG  V,  GASSERT.  583 

216  U.  S.  Per  Curiam. 

Mr.  Amos  C.  Miller  and  Mr.  Wm.  M.  Beckner  for  plaintiflfs 
in  error. 

Mr.  Frederick  S.  Tyler  and  Mr.  James  C.  Sims  for  de- 
fendant in  error. 

Per  Curiam.  Judgment  affirmed,  with  costs.  Chanute  v. 
Trader,  132  U.  S.  210;  WUson  v.  North  Carolina,  169  U.  S. 
586;  Central  Land  Co.  v.  Laidley,  159  U.  S.  103;  Bacm  v. 
Texas,  163  U.  S.  207;  Eustis  v.  Bolles,  150  U.  S.  361;  White 
V.  Le(yoy,  134  U.  S.  91;  Electric  Co,  v.  Dow,  166  U.  S.  489; 
Pierce  v.  Somerset  Railway,  171  U.  S.  QAl;  Shej)ard  v.  Barron, 
194  U.  S.  553;  Rand,  McNally  &  Co.  v.  Commonwealth,  1§6 
S.  W.  Rep.  238;  S.  C,  108  S.  W.  Rep.  892,  32  Ky.  Law  Rep. 
441,  1168;  Commonwealth  v.  Ginn  &  Co.,  Ill  Kentucky,  110. 


■ii*¥- 


STRONG  V.  GASSERT. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OP  MONTANA. 

No.  401.    Motion  to  dismiss  or  affirm  submitted  November  1,  1909. — 

Decided  November  8,  1909. 

A  writ  of  error  to  the  highest  court  of  a  State  dismissed  for  want  of 

jurisdiction  on  the  authority  of  previous  decisions. 
Writ  of  error  to  review  38  Montana,  18,  dismissed. 

Mr.  M.  S.  Gunn  for  plaintiflF  in  error. 

Mr.  W.  C.  Keegin  for  defendant  in  error. 

Per  Curiam.  Writ  of  error  dismissed  for  want  of  juris- 
diction. McCorquodale  v.  Texas,  211  U.  S.  432;  Corkran  OH 
&  Devetopment  Co.  v.  Amaudet,  199  U.  S.  182;  Arkansas 
Southern  Railroad  Co.  v.  German  National  Bank,  207  U.  S.  270. 


584  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 


PFAELZER  V.  BACH  FUR  COMPANY. 

ERROR  TO  THE   CIRCUIT   COURT  OP  THE   UNITED   STATES   FOR 
THE   SOUTHERN   DISTRICT   OP   NEW   YORK. 

No.  290.    Submitted  November  1,  1909.— Decided  November  8,  1909. 

A  writ  of  error  to  the  Circuit  Cotut  of  the  United  States  dismissed 
for  want  of  final  judgment  on  the  authority  of  McIAsh  v.  Roff,  141 
U.  8.  661.1 

Mr.  A,  S.  Gilbert  for  plaintiff  in  error. 

Mr.  Benjamin  N.  Cardozo  for  defendant  in  error. 

Per  Curiam.    Writ  of  error  dismissed  for  want  of  final 
judgment.    McIAsh  v.  Roff,  141  U.  S.  661. 


-%•*- 


BARKER  V.  BUTTE  CONSOLIDATED  MINING 

COMPANY. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  MONTANA. 
No.  32.    Submitted  November  12,  1909.— Decided  November  15,  1909. 

A  writ  of  error  to  the  highest  court  of  a  State  dismissed  for  want  of 

jurisdiction  on  the  authority  of  previous  decisions. 
Writ  of  error  to  review  35  Montana,  327,  dismissed. 

^  The  headnote  in  McLish  v.  Roff  is  as  follows: 
Under  §  5  of  the  act  of  March  3,  1891,  c.  517,  26  Stat.  826,  "to  estab- 
lish Circuit  Courts  of  Appeal,"  etc.,  the  appeal  or  writ  of  error 
which  may  be  taken  '^  from  the  existing  Circuit  Courts  direct  to  the 
Supreme  Court,"  "in  any  case  in  which  the  jurisdiction  of  the  court 
is  in  issue,"  can  be  taken  only  after  final  judgment;  when  the  party 
against  whom  it  is  rendered  must  elect  whether  he  will  take  his 
writ  of  error  or  appeal  to  this  court  upon  the  question  of  jurisdic- 
tion alone,  or  to  the  Circuit  Court  of  Appeals  upon  the  whole  cam« 


REMICK  &  CO.  V.  STERN.  685 

215  U.  S.  Per  Curiam. 

Mr.  Lewis  0.  Evans  for  plaintiflf  in  error. 

Mr.  John  J.  McHatton  for  defendant  in  error. 

Per  Curiam.  Writ  of  error  dismissed  for  want  of  jurisdic- 
tion. Butte  City  Water  Co.  v.  BaJcer,  196  U.  S.  119;  Haire  v. 
Rice,  204  U.  S.  291;  Sayward  v.  Denny,  158  U.  S.  180;  Maran 
V.  Harsky,  178  U.  S.  205;  Seals  v.  Ccme,  188  U.  S.  184;  I(AJoa 
V.  Rood,  187  U.  S.  87;  StuaH  v.  Hauser,  203  U.  S.  585;  Gote- 
v)ood  V.  North  Carolina,  203  U.  S.  531;  Bachid  v.  Wilsm,  204 
U.  S.  36;  lawa  Central  Railway  Co.  v.  lotva,  160  U.  S.  389. 


•«•»> 


JEROME  H.  REMICK  &  COMPANY  v.  STERN. 

ERROR  TO  THE  CIRCUIT  COURT  OP  THE  UNITED  STATES  FOR  THE 

SOUTHERN  DISTRICT  OP  NEW  YORK. 

No.  352.    Submitted  November  8,  1909.— Decided  November  15,  1909. 

Writ  of  error  to  the  Circuit. Court  dismissed  for  want  of  final  judg- 
ment on  authority  of  McLish  v.  Roff^  141  U.  S.  661. 

Mr.  Moses  H.  Grossman  for  plaintiff  in  error. 

Mr.  Julius  Henry  Cohen  for  defendant  in  error. 

Per  Curiam.  Writ  of  error  dismissed  for  want  of  final 
judgment.  McIAsh  v.  Roff,  141  U.  S.  661;  Pfaeker  v.  Bach 
Fur  Company  of  Illinois,  decided  November  8,  1909,  ante, 
p.  584. 


586  OCTOBER  TERM,  1909. 

Per  Curiam.  215  U.  S. 


NORTH  CAROLINA  MINING  COMPANY  v. 

WESTFELDT. 

APPEAL  FROM  THE  tTNTTED  STATES  CIBCUIT  COURT  OP  APPBAIS 

FOR  THE  FOURTH  CIRCUIT. 

No.  580.    Motion  to  dismiss  or  affinn  submitted  November  8,  1909. — 

Decided  November  15,  1909. 

An  appeal  from  the  Circuit  Court  of  Appeals  (166  Fed.  Rep.  706) 
dismissed  for  want  of  jurisdiction  on  the  authority  of  prior  decisions. 

Cause  below  heard  before  Fuller,  Circuit  Justice,  and  Morris 
and  Brawley,  District  Judges,  composing  the  court,  and 
decree  rendered  January  12,  1909,  166  Fed.  Rep.  706;  peti- 
tion for  rehearing  denied  February  4,  1909;  application  for 
certiorari  denied  April  19,  1909,  214  U.  S.  516;  application 
to  the  Circuit  Court  of  Appeals,  Waddill,  McDowell  and 
Keller,  District  Judges,  sitting,  for  allowance  of  appeal  denied 
May  13,  1909;  appeal  granted  June  12,  1909,  by  Goff,  Qrcuit 
Judge,  and  motion  to  set  aside  that  order  denied  August  21, 
1909,  Goff,  Circuit  Judge,  stating:  "I  find  myself  impelled 
to  the  conclusion  that  the  disposition  by  the  Supreme  Court 
of  a  motion  to  dismiss  said  appeal,  will  under  the  circum- 
stances now  existing  best  protect  the  interests  of  all  the 
parties  hereto,  and  will  also  settle  a  question  of  practice  con- 
cerning which  there  is  at  this  time  doubt  and  confusion." 

Mr.  Joseph  J.  Hooker,  Mr.  James  H.  Merrimon,  Mr.  Hannis 
Taylor  and  Mr.  Charles  A .  Moore  for  the  appellant. 

Mr.  Jvlius  C.  Martin,  Mr.  Alfred  S.  Barnard  and  Mr.  F.  A . 
Sondley  for  the  appellees. 

Per  Curiam.    Appeal  dismissed  for  want  of  jurisdiction. 


GUARANTY  TR.  CO.  v.  METROPOL.  ST.  RY.  CO.  687 
215  U.  8.  Per  Curiam. 

Macfadden  v.  United  States,  213  U.  S.  288;  Oredey  v.  Lowe, 
155  U.  S.  58;  In  re  Winn,  213  U.  S.  458;  In  re  Moore,  209 
U.  S.  490. 


■•♦^ 


GUARANTY   TRUST   COMPANY   v.    METROPOLITAN 

STREET  RAILWAY  COMPANY. 

APPEAL  FROM  THE  CIRCUIT  COURT  OP  THE  UNITED  STATES  FOR 
THE   SOUTHERN   DISTRICT  OF  NEW   YORK. 

No.  607.    Motion  to  dismiss  submitted   November  8,   1909. — ^Decided 

November  15,  1909. 

An  appeal  from  the  Circuit  Court  dismissed  without  opinion  on  the 
authority  of  previous  decisions. 

Mr.  Julien  T.  Davies,  Mr,  Brainard  ToUes  and  Mr.  John  C. 
Spooner  for  the  appellant. 

Mr.  Arthur  H.  Masten,  Mr.  Matthew  C.  Fleming,  Mr. 
W.  M.  Chadboume,  Mr.  Wm.  M.  Coleman,  Mr.  James  Byfne 
and  Mr.  Frank  H.  Piatt  for  the  appellees. 

Per  Curiam.  Appeal  dismissed  for  want  of  jurisdiction. 
Carey  v.  Houston  cfe  Texas  Central  Railway  Co.,  150  U.  S.  170; 
In  re  Lenmm,  150  U.  S.  393;  Cornell  v.  Green,  163  U.  S.  75; 
Empire  State-Idaho  Mining  &  Developing  Co.  v.  Havley,  205 
U.  S.  225;  Goodrich  v.  Ferris,  214  U.  S.  71;  FarreU  v.  O'Brien, 
199  U.  S.  89;  LouimUe  Trust  Co.  v.  KnoU,  191  U.  S,  225; 
United  States  v.  Larkin,  208  U.  S.  333;  Atlantic  Trust  Co.  v. 
Chapman,  Receiver,  208  U.  S.  360;  Bien  v.  Robinson,  Re- 
ceiver, 208  U.  S.  423;  Ddmar  Jockey  Club  v.  Missouri,  210 
U.  S.  324;  and  see  In  re  Metropolitan  Railway  Receivership, 
208  U.  S.  90;  Guaranty  Trust  Co.  v.  Metropolitan  Street  Ry. 


688  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 

Co.,  166  Fed.  Rep.  569;  168  Fed.  Rep.  937;  170  Fed.  Rep.  335; 

170  Fed.  Rep.  625;  170  Fed.  Rep.  626;  171  Fed.  Rep.  1014; 

171  Fed.  Rep.  1015;  171  Fed.  Rep.  1019;  MorUm  Trust  Co.  v. 
Metropolitan  Street  Ry.  Co.,  170  Fed.  Rep.  336;  Guaranty 
Trust  Co.  V.  Second  Ave.  Ry.  Co.,  171  Fed.  Rep.  1020;  Permr- 
sylvania  Steel  Co.  v.  Metropolitan  Street  Ry.  Co.,  170  Fed, 
Rep.  623. 


•^m*- 


HELVETIA-SWISS   FIRE    INSURANCE  COMPANY  v. 

BRANDENSTEIN. 

ERROR  TO  THE  CIRCUIT  COURT  OP  APPEALS  FOR  THE  SECOND 

CIRCUIT. 

No.  481.    MotioD  to  dismiss  submitted  November  16,  1909. — ^Decided 

November  29,  1909. 

A  writ  of  error  to  the  Circuit  Court  of  Appeals  dismissed  without 
opinion  on  the  authority  of  Macfadden  v.  United  States,  213  U.  S. 
288.1 

^The  pertinent  headnotes  in  Macfadden  v.  United  States  are  as 

follows: 

Although  where  a  real  constitutional  question  exists  a  writ  of  error  can 
be  sued  out  directly  from  this  court  to  the  trial  court  under  §  5  of  the 
act  of  1891,  the  right  to  do  so  is  lost  by  taking  an  appeal  to  the  C^- 
cuit  Court  of  Appeals.    Robinson  v.  CaldtoeU,  165  U.  S.  359. 

The  Circuit  Court  of  Appeals  does  not  lose  its  jurisdiction  of  an  appeal 
under  §  6  of  the  act  of  1891  because  questions  were  involved  which 
would  have  warranted  a  direct  appeal  to  this  court  under  §  5  of  that 
act. 

Where  the  case  can  be  taken  directly  to  this  court  under  §  5,  or  to  the 
Circuit  Court  of  Appeals  under  §  6,  and  the  latter  appeal  is  taken, 
while  a  writ  of  error  will  lie  to  the  Circuit  Court  of  Appeals  if  the 
jurisdiction  of  the  Circuit  Court  rests,  as  shown  by  plaintiff's  state- 
ment, on  grounds,  one  of  which  is  reviewable  by  this  court,  it  will  not 
lie  if  the  only  ground  of  jurisdiction  is  one  where  the  judgment  of 
the  Circuit  Court  of  Appeals  is  final. 


KANSAS  CITY  STAR  CO.  v,  JULIAN.  689 

216  U.  S.  Per  Curiam. 

Mr.  Frederick  B.  Campbell  for  plaintiflf  in  error. 

Mr.  WiUiam  V.  Rowe  and  Mr.  RoyaU  Victor  for  defendants 
in  error. 

Per  Curiam.    Writ  of  error  dismissed  for  want  of  jurisdic- 
tion.   Macfadden  v.  United  States,  213  U.  S.  288. 


'  !•■ 


KANSAS  CITY  STAR  COMPANY  v.  JULIAN. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  MISSOURI. 

No.  85.    Motion  to  diHTnifw  or  affirm  submitted  November  29,  1909. — 

Decided  December  6,  1909. 

Where  the  Federal  question  is  first  raised  in  the  petition  to  the  highest 

court  of  the  State  for  rehearing  it  is  too  late.    Loeber  v.  Schroeder, 

149  U.  S.  580. 
Where  the  judgment  of  the  state  cotirt  rests  on  non-Federal  grounds 

broad  enough  to  sustain  it  this  court  cannot  review  it  under  §  709, 

Rev.  Stat. 
Writ  of  error  to  reviewi  209  Missourii  35,  dismissed. 

Mr.  Isaac  N.  Waiscm,  Mr.  Hannis  Taylor,  Mr.  Wash. 
Adams  and  Mr.  Frank  Hagerman,  for  the  plaintiff  in  error. 

Mr.  John  H.  Atwood,  Mr.  0.  H.  Dean  and  Mr.  Ira  Julian, 
for  the  defendant  in  error. 

Per  Curiam.  Writ  of  error  dismissed  for  want  of  jurisdic- 
tion. .  Sayward  v.  Denny,  158  U.  S.  180;  Mutual  Life  Ins, 
Co.  V.  McGrew,  188  U.  S,  291,  307,  308;  State  v.  Bland,  186 

The  judgment  of  the  Circuit  Court  of  Appeals  in  a  criminal  case  is  final, 
and  is  no  less  so  because  the  appellate  jurisdiction  of  this  comi;  might 
have  been  invoked  directly  under  §  5  of  the  act  of  1891. 


590  OCTOBER  TERM,  1909. 

Per  Curiam.  215  U.  8. 

Missouri,  691,  701,  Oxley  Stave  Co.  v.  Builer  County,  166  U.  S. 
648,  653;  case  below,  209  Missouri,  35. 

The  attention  of  the  state  Supreme  Court  was  not  called 
to  any  Federal  question  until  in  the  petition  for  rehearing, 
and  that  was  too  late.  Lo^er  v.  Schroeder,  149  U.  S.  580, 
585,  and  cases. 

The  judgment  rested  on  non-Federal  grounds  broad  enough 
to  sustain  it.  209  Missouri,  35;  Cincinnati  Street  Ry.  Co,  v. 
Snell,  193  U.  S.  30;  Hammond  Packing  Co.  v.  Arkan^s,  212 
U.  S.  322. 


«•> 


MILLS  V.  JOHNSON. 

ERROR  TO  THE  COURT  OF  CIVIL  APPEALS  FOR  THE  FIFTH  SU- 
PREME   JUDICIAL    DISTRICT    OF   THE    STATE    OF   TEXAS. 

No.  36.    Argued  November  12,  1909.— Decided  December  13,  1909. 

Writ  of  error  to  review  a  judgment  of  the  state  court  dismissed  for 
want  of  jurisdiction  without  opinion  on  authority  of  previous  de- 
cisions. 

Mr.  Frederic  D.  McKenney  and  Mr.  R.  S.  Nebleit  for  plain- 
tiffs in  error. 

Mr.  Robert  E.  Prince,  Mr.  Richard  Mays  and  Mr.  W.  S. 
Simpkins  for  defendants  in  error. 

Per  Curiam.  Writ  of  error  dismissed  for  want  of  jurisdic- 
tion. Beale^s  Heirs  v.  Johnson,  45  Tex.  Civ.  App.  119;  99  S.  W. 
Rep.  1045:  Waters-Pierce  OH  Co.  v.  Texas,  212  U.  S.  86;  Same 
V.  Same  (No.  2),  212  U.  S.  112;  McCarquodde  v.  Texas,  211 
U.  S.  432;  Cox  v.  Texas,  202  U.  S.  446;  Harding  v.  lUiiuna,  196 
U.  S.  78;  Arbudde  v.  Blackburn,  191  U.  S.  405. 


Ex  parte  UNITED  STATES  CONS.  S.  RAISIN  CO.  591 
215  U.  S.  Per  Guriam. 


THOMAS  V,  IOWA. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  IOWA. 

No.  448.    Argued  December  13,  1909.— Decided  December  20,  1909. 

A  writ  of  error  to  review  a  judgment  of  the  highest  court  of  a  State, 

dismissed  for  want  of  jurisdiction  without  opinion. 
Writ  of  error  to  review,  135  Iowa  717;  109  N.  W.  Rep.  900,  dismissed. 

Mr.  J.  T.  Mvlvaney  for  plaintiflF  in  error. 

Mr,  Charles  W.  Lyon  for  defendant  in  error. 

Per  Curiam.    Writ  of  error  dismissed  for  want  of  jurisdic- 
tion.   No  further  opinion  will  be  filed. ^ 


*»»■ 


Ex  parte  UNITED  STATES  CONSOLIDATED  SEEDED 

RAISIN  COMPANY. 

PETITION   FOR  MANDAMUS. 

No.  — .    Original.    Submitted  December  20,  1909. — Decided  January  3, 

1910. 

Motion  for  leave  to  file  petition  for  a  writ  of  mandamus  or  certiorari 
denied. 

Mr.  John  H.  Miller  for  petitioner. 

Per  Curiam.    Motion  for  leave  to  file  petition  for  writ  of 
mandamus  or  certiorari  denied. 

*  This  case  had  been  once  before  to  this  court  on  writ  of  error  and 
the  writ  dismissed.    See  209  U.  S.  258. 


592  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 


HUSTON,  JUDGE,  v.  STATE  OF  OKLAHOMA  ex  rd, 

HASKELL,  GOVERNOR. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  OKLAHOMA. 

No.  325.    Motion  to  disauss  submitted  December  20,  1909. — ^Decided 

January  3,  1910. 

Writ  of  error  to  review  judgment  of  highest  court  of  a  State,  dismissed 
for  want  of  jurisdiction  without  opinion  on  authority  of  previous 
decisions. 

Writ  of  error  to  review  21  Oklahoma,  782,  dismissed. 

Mr.  E.  G.  Spilman  for  plaintifiFs  in  error. 

Mr.  A.  C.  Cruce  for  defendant  in  error. 

Per  Curiam.  Writ  of  error  dismissed  for  want  of  jurisdic- 
tion. Haire  v.  Rice,  204  U.  S.  291;  Corkran  Oii  Co.  v. 
Arrumdet,  199  U.  S.  146;  Luther  v.  Borden,  7  How.  1;  Taylor 
V,  Beckham,  178  U.  S.  548;  case  below,  21  Oklahoma,  782. 


<•» 


PERTH  AMBOY  DRY  DOCK  COMPANY  v.  MONMOUTH 

STEAMBOAT  COMPANY. 

APPEAL   FROM   THE   DISTRICT   COURT   OP  THE    UNITED   STATES 

FOR  THE  DISTRICT  OF  NEW  JERSEY. 

No.  609.     Submitted  December  20,   1909.— Decided  January  3,  1910. 

Decree  of  the  District  Court  of  the  United  States  affirmed  without 
opinion. 


KENYON  V.  FOWLER.  593 

215  U.  S.  Per  Curiam. 

I 

Mr,  James  D.  DeweU,  Jr.,  and  Mr.  Avery  Fayette  Cushr 
man  for  appellant. 

Mr.  Charles  N.  Snyder  for  appellee. 

Per  Curiam.    Decree  affinned  with  costs. 


■•♦^ 


KENYON  V.  FOWLER,  RECEIVER  OF  AMERICAN 
EXCHANGE    NATIONAL   BANK   OF   SYRACUSE. 

ERROR  TO  THE  CIRCUIT  COURT  OF  APPEALS  FOR  THE  SECOND 

CIRCUIT. 

No.  87.    Argued  January  18,  1910.— Decided  January  24,  1910. 

Judgment  of  the  Circuit  Court  of  Appeals  affirming  a  judgment  of 
the  District  Court  for  an  assessment  of  stock  of  an  insolvent  national 
bank  made  by  the  Comptroller,  affirmed  without  opinion. 

155  Fed.  Rep.  107,  affirmed. 


Mr.  Dorr  Raymond  Cobb  for  plaintiff  in  error. 

Mr.  Leonard  C.  Crouch  for  defendant  in  error. 

Per  Curiam.  Judgment  affirmed  with  costs,  and  cause 
remanded  to  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  New  York.  Keyser  v.  Hitz,  133  U.  S. 
138;  Finn  v.  Brown,  142  U.  S.  56;  Richmond  v.  Irons,  121 
U.  S.  27;  MaUesm  v.  Dent,  176  U.  S.  521.  Opinion  below, 
155  Fed.  Rep.  107;  S.  C,  83  C.  C.  A.  567. 
VOL.  ccxv— 38 


694  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 


DYER  V.  CITY  OF  MELROSE. 

ERROR   TO   THE   SUPERIOR   COURT    OF   THE   STATE    OP 

MASSACHUSETTS. 

No.  93.    Argued  January  20,  lOlO.—Decided  January  24,  1910. 

A  judgment  of  the  state  court  sustaining  a  tax  on  property  of  an 
officer  of  the  United  States  Navy  affirmed  on  the  authority  of 
previous  cases.^ 

197  Massachusetts,  99,  affirmed. 

Mr.  Chester  M,  Pratt  for  plaintiff  in  error. 
Mr.  Claude  L.  Altera  for  defendant  in  error. 

Per  Curiam.  Judgment  affirmed  with  costs.  Htbemia 
Savings  Society  v.  San  Francisco,  200  U.  S.  310;  Mcintosh  v. 
Aubrey,  185  U.  S.  122;  Railroad  Co.  v.  PenisUm,  18  Wall.  5; 
case  below,  Dyer  v.  Melrose,  197  Massachusetts,  99. 


BERGER  V.  TRACY. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  IOWA. 
No.  97.    Submitted  January  21,  1910.— Decided  January  24,  1910. 

A  writ  of  error  to  review  judgment  of  the  highest  court  of  a  State 
dismissed  for  want  of  jurisdiction,  on  authority  of  CastiUo  t.  Afo 

^  As  stated  in  the  brief  of  defendant  in  error: 

''This  case  presents  the  single  question  whether  money  which  the 
plaintiff  in  error  has  received  as  salary  or  emoluments  from  the  Federal 
Government,  after  being  so  received  and  deposited  in  national  banks, 
subject  to  check,  is  exempt  from  taxation  by  local  authorities  in 
Massachusetts,  on  the  principle  that  a  State  cannot  lay  a  tax  upon 
an  office  under  the  Government  of  the  United  States,  nor  upon  any 
means  or  instruments  used  solely  for  the  maintenance  of  the  Federal 
Government  or  the  performance  of  any  of  its  functions." 


UNITED  STATES  r.  TERMINAL  R.  R.  ASSN.     596 
215  U.  S.  Per  Curiam. 

Connico,  168  U.  S.  674;  no  Federal  question  waa  suggested  prior  to 
petition  for  writ  of  error. 
Writ  of  error  to  review  135  Iowa,  597,  dismissed. 

Mr.  Chester  C  Cole  for  plaintiff  in  error. 

No  appearance  for  defendant  in  error. 

Per  Curiam.  Writ  of  error  dismissed  for  the  want  of 
jurisdiction.  Castillo  v.  McConnico,  168  U.  S.  674.  No 
Federal  question  suggested  prior  to  petition  for  writ  of  error. 
Case  below,  135  Iowa,  597. 


•«••• 


UNITED  STATES  v.  TERMINAL  RAILROAD  ASS0CL4- 

TION  OF  ST.  LOUIS. 

CEBTIFICATE  FROM  THE  CIRCUIT  COURT  OF  THE  UNITED  OTATES 
FOR  THE   EASTERN   DISTRICT  OF   MISSOURI. 

No.   597.    Motion   to  disnuH  mibmitted   January  31,    1910, — Decided 

January  31,  1910. 

A  certificate  in  which  there  waA  no  opinion,  judgment  or  orrler  of  the 
court  below  dismiflsed  on  authority  of  BaUinujre  A  Ohio  Rnilrrxui 
Company  ▼.  IrUeniaU  Commerce  Cr/mmtMum,  ante,  p,  210. 

The  Attorney  General  and  The  Solicilor  General  for  thv; 
United  States. 

No  appearance  for  The  Tcnninal  Railrrxsui  ArM/Mnsxiiou  of 
St.  Louis  el  al. 

Per  Curiam,  CeTtifir:sLie  di-rrij*>yW  fm  authority  of  /><////- 
more  Jt  Ohio  R.  R.  Co.  v,  lnJUr>.UiU  Cfnnnurrjt  CmamK>.>.i//n, 
215  U.  8. 216. 


696  OCTOBER  TERM,  1909. 

Decisions  on  Petitions  for  Writs  of  Certiorari.         215  U.  S. 


Decisions  on  Petitions  for  Writs  of  Certiorari  from 
October  11,  1909,  to  Febrmry  20,  1910.    • 

No.  457.  American  Wood  Working  Machinery  Com- 
pany ET  al.,  Petitioners,  v.  The  Union  Trust  Company 
ET  AL.  October  18,  1909.  Petition  for  a  writ  of  certiorari 
to  the  United  States  Circuit  Court  of  Appeals  for  the  Fourth 
Circuit  denied.  Mr.  Charles  A.  Douglas  for  petitioners.  No 
appearance  for  respondents. 


No.  458.  William  F.  Gobssling,  PETmoNBR,  v.  Thomas 
B.  Collier.  October  18,  1909.  Petition  for  a  writ  of  cer- 
tiorari to  the  United  States  Circuit  Court  of  Appeals  for  the 
Sixth  Circuit  denied.  Mr.  Edward  S.  McCalnwnt  and  Mr. 
L.  P.  Loving  for  petitioner.    No  appearance  for  respondent. 


No.  464.  Novelty  Incandescent  Lamp  Company,  Peti- 
tioner, V.  The  Edison  Electric  Light  Company.  Octo- 
ber 18,  1909.  Petition  for  a  writ  of  certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the  Third  Circuit  denied. 
Mr.  A.  Parker  Smith  for  petitioner.  Mr.  Richard  N.  Dyer  and 
Mr.  John  Robert  Taylor  for  respondent. 


No.  471.  The  Henry  DuBois  Sons  Company,  Claimant, 
ETC.,  PETrriONBR,  V.  The  Steam  Tug  Eugene  F.  Moran, 
Michael  Moran,  Claimant,  et  al.;  and  No.  472.  The 
Henry  DuBois  Sons  Company,  Claimant,  etc.,  Peti- 
tioner, V.  The  New  York  Central  &  Hudson  River 
Railroad  Company  et  al.    October  18,  1909.    Petition  for 


OCTOBER  TERM,  1909.  597 

215  U.  S.         Decisions  on  Petitions  for  Writs  of  Certiorari. 

writs  of  certiorari  to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Second  Circuit  denied.  Mr,  James  Emerson 
Carpenter  and  Mr.  Samud  Park  for  petitioner.  Afr.  William 
&  Montgomery,  Mr.  Archibald  G.  Thacher  and  Mr.  Charles 
C,  Burlingham  for  respondents. 


No.  475.  Pyman  Steamship  Company,  Limited,  Peti- 
tioner, V.  Mexican  Central  Railway  Company,  Limited. 
October  18,  1909.  Petition  for  a  writ  of  certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for  the  Second  Circuit 
denied.  Mr.  J.  Parker  Kirlin  for  petitioner.  Mr.  Joseph  H. 
Choate,  Jr.,  for  respondent. 


No.  476.  American  Manufacturing  Company,  Peti- 
tioner, V.  The  Steamship  Wildenfem,  etc.,  et  al.  Octo- 
ber 18,  1909.  Petition  for  a  writ  of  certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the  Second  Circuit  denied. 
Mr.  Frederick  M.  Brown  for  petitioner.  Mr.  James  J.  Maddin 
and  Mr.  de  Lagnel  Eerier  for  respondents. 


No.  477.  Charles  F.  Harris,  Late  Owner  op  the  Steam 
Tug  De  Veaux  Powel,  Petitioner,  v.  The  Ferryboat 
Lackawanna,  etc..  The  Hoboken  Ferry  Company,  Claim- 
ant. October  18,  1909.  Petition  for  a  writ  of  certiorari  to 
the  United  States  Circuit  Court  of  Appeals  for  the  Second 
Circuit  denied.  Mr.  Frederick  M.  Brown  for  petitioner. 
Mr.  James  J.  Maddin  and  Mr.  de  Lagnel  Berier  for  re- 
spondent. 


No.  479.  Bettis    Majors    and    A.  T.   Ball,   Trustee, 


598  OCTOBER  TERM,  1909. 

Deciflions  on  Petitions  for  Writs  of  Certiorari.         215  U.  8. 

Petitioners,  v.  H.  C.  Williamson.  October  18,  1909.  Peti- 
tion for  a  writ  of  certiorari  to  the  United  States  CSrcuit  Court 
of  Appeals  for  the  Fifth  Circuit  denied.  Mr.  E.  D.  Saunders, 
Mr,  Joseph  Hirsch  and  Mr.  Murray  F.  Smith  for  petitioners. 
Mr.  George  Anderson  for  respondent. 


No.  517.  Hub  Construction  Company,  Petitioner,  t;. 
Nathaniel  W.  Hobbs,  Trustee.  October  18,  1909.  Peti- 
tion for  a  writ  of  certiorari  to  the  United  States  Circuit  Court 
of  Appeals  for  the  First  Circuit  denied.  Mr.  Thomas  G.  Frost 
for  petitioner.    Mr.  Edwin  G.  Eastman  for  respondent. 


No.  687.  The  Cfty  op  Newburyport,  Petitioner,  v, 
CmzENs'  Savings  Bank.  October  18,  1909.  Petition  for  a 
writ  of  certiorari  to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  First  Circuit  denied.  Mr.  William  R.  Harr  for 
petitioner.    Mr.  Edward  F.  McClennan  for  respondent. 


No.  596.  Wm.  G.  Huey  bt  al.,  PETrriONERS,  v.  Arthur 
K.  Brown,  Surviving  Recehter,  etc.  October  18,  1909. 
Petition  for  a  writ  of  certiorari  to  the  United  States  Circuit 
Court  of  Appeals  for  the  Third  Circuit  denied.  Mr.  Samud 
W.  Pennypacker  for  petitioners.  Mr.  Charles  H.  Burr,  Mr, 
Reynolds  D.  Brown  and  Mr.  Malcolm  Lloyd,  Jr.,  for  re- 
spondent. 


No.  600.  The  Adelbert  College  of  the  Western 
Reserve  Universfty  et  al.,  Petftioners,  v.  The  Wabash 
Railroad  Company  et  al;  and  No.  601.  Cyrus  F.  Pierson 


OCTOBER  TERM,  1909.  599 

215  U.  S.         Decisions  on  Petitions  for  Writs  of  Certiorari. 

ET  AL.,  Petitioners,  v.  The  Wabash  Railroad  Company 
ET  AL.  October  18,  1909.  Petitions  for  writs  of  certiorari 
to  the  United  States  Circuit  Court  of  Appeals  for  the  Sixth 
Circuit  denied.  Mr.  Lawrence  Maawellj  Mr.  Murray  Season- 
good  and  Mr.  John  C.  F.  Gardner  for  petitioners.  Mr.  John 
G.  MUbum,  Mr.  John  H.  Doyle,  Mr.  Rush  Taggart  and  Mr. 
Judson  Harmon  for  respondents. 


No.  608.  John  J.  Boland  et  al.,  Petitioners,  v.  The 
Steam  Vessel  Oceanica,  etc.  October  18,  1909.  Petition 
for  a  writ  of  certiorari  to  the  United  States  Circuit  Court  of 

a 

Appeals  for  the  Second  Circuit  denied.    Mr.  George  ClirUon 
for  petitioners.    Mr.  Thomas  C.  Burke  for  respondent. 


No.  610.  Dudley  0.  Watson  et  al.,  PErrriONERS,  v. 
Ernest  H.  Greenwood  et  al.  October  18,  1909.  Petition 
for  a  writ  of  certiorari  to  the  United  States  Circuit  Court  of 
Appeals  for  the  Third  Circuit  denied.  Mr.  Edgar  J.  Pershing 
for  petitioners.  Mr.  Joseph  de  F.  Junkin,  Mr.  G.  W.  Pepper 
and  Mr.  W.  B.  Bodine,  Jr.,  for  respondents. 


No.  616.  The  New  York,  New  Haven  &  Hartford 
Railroad  Company,  Claimant,  etc.,  Petitioner,  v.  The 
Steamship  Calderon,  etc.  October  18,  1909.  Petition  for 
a  writ  of  certiorari  to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Second  Circuit  denied.  Mr.  William  S.  Mont- 
gomery for  petitioner.   Mr.  Harrington  Putnam  for  respondent. 


No.  617.  Edward  Cardwell,  PETrriONER,  v.  The  United 
States.    October  18,  1909.    Petition  for  a  writ  of  certiorari 


600  OCTOBER  TERM,  1909. 

Decisions  en  Petitions  for  Writs  of  Certiorari.         215  U.  S. 

to  the  United  States  Circuit  Court  of  Appeals  for  the  Ninth 
Circuit  denied.  Mr,  Arthur  A.  Bimey  for  petitioner.  The 
Attorney  General  and  The  Solicitor  General  for  respondent. 


No.  618.  E.  E.  Androvette,  PErmoNER,  v.  The  Steam- 
ship Baralong,  etc.  October  18,  1909.  Petition  for  a  writ 
of  certiorari  to  the  United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit  denied.  Mr.  WiUiam  S.  Montgomery  for 
petitioner.  Mr.  J.  Parker  Kirlin  and  Mr.  John  M.  Wodsey 
for  "respondent. 


No.  619.  The  American  Trust  Company  op  Boston, 
Mass.,  Petitioner,  v.  W.  &  A.  Fletcher  Company.  Octo- 
ber 18,  1909.  Petition  for  a  writ  of  certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the  First  Circuit  denied. 
Mr,  WiUiam  Arthur  Sargent  and  Mr.  Elmer  P.  Howe  for  peti- 
tioner. Mr.  Harrington  Putnam  and  Mr.  Edward  S.  Dodge 
for  respondent. 


No.  620.  Alfred  L.  Sweeney,  Petitioner,  v.  Edward  B. 
Smith  et  al.  October  18,  1909.  Petition  for  a  writ  of  cer- 
tiorari to  the  United  States  Circuit  Court  of  Appeals  for  the 
Third  Circuit  denied.  Mr.  William  L.  RoyaU  and  Mr.  George 
Demming  for  petitioner.  Mr.  WiUiam  A.  Glasgow,  Jr.,  for 
respondent. 


No.  621.  The  Mutual  Life  Insurance  Company  of  New 
York,  Petitioner,  v.  Adolph  C.  Griesa  et  al.  October  18, 
1909.  Petition  for  a  writ  of  certiorari  to  the  United  States 
Circuit  Court  of  Appeals  for  the  Eighth  Circuit  denied.    Mr. 


OCTOBER  TERM,  1909.  601 

215  U.  S.         DecisionB  on  Petitions  for  Writs  of  Certiorari. 

Thomas  F.  Doran  for  petitioner.     No  appearance  for  re- 
spondents. 


No.  625.  The  Hood  Rubber  Company,  Petitioner,  v. 
The  Atlantic  Mutual  Insurance  Company.  October  18, 
1909.  Petition  for  a  writ  of  certiorari  to  the  United  States 
Circuit  Court  of  Appeals  for  the  Second  Circuit  denied.  Mr. 
Harrington  Putnam  for  petitioner.  Mr.  John  G.  MUbum  and 
Mr.  Walier  F.  Taylor  for  respondent. 


No.  626.  The  iETNA  Indemnity  Company,  PETrriONER, 
V.  The  Farmers'  National  Bank  of  Boyertown.  Octo- 
ber 18,  1909.  Petition  for  a  writ  of  certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the  Third  Circuit  denied. 
Mr.  George  M.  MacKdlar  and  Mr.  Gustavus  Remak,  Jr.,  for 
petitioner.    Mr.  S.  H.  AUeman  for  respondent. 


No.  627.  The  Delaware  &  Hudson  Company,  Peti- 
tioner, V.  The  Albany  &  Susquehanna  Railroad  Com- 
pany ET  AL.  October  18,  1909.  Petition  for  a  writ  of  cer- 
tiorari to  the  United  States  Circuit  Court  of  Appeals  for  the 
Second  Circuit  denied.  Mr.  James  M.  Beck  and  Mr.  Charles 
F.  Brown  for  petitioner.  Mr.  George  WeUwood  Murray, 
Mr.  E.  Parmalee  Prentice  and  Mr.  Charles  P.  Rowland  for 
respondents. 


No.  407.  Yellow  Poplar  Lumber  Company,  PETmoNEK, 
V.  S.  F.  Chapman.  November  1,  1909.  Petition  for  a  writ  of 
certiorari  to  the  United  States  Circuit  Court  of  Appeals  for 
the  Fourth  Circuit  denied,  and  parts  of  petition  and  brief  of 


602  OCTOBER  TERM,  1909. 

Decisions  on  Petitions  for  Writs  of  Certiorari.      '   215  U.  S. 

petitioner  stricken  from  the  files  on  account  of  impertinent 
and  improper  matter.  Mr.  George  S.  WrigtU  for  petitioner. 
Mr.  J.  F.  BvUiU  for  respondent. 


No.  520.  John  A.  Kuykendall,  Administrator,  etc., 
PETrrioNER,  V.  The  Union  Pacific  Railroad  Company. 
November  1,  1909.  Petition  for  a  writ  of  certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for  the  Eighth  Circuit 
denied.  Mr.  D.  W.  Wood  for  petitioner.  Mr.  Robert  S. 
Lovett  for  respondent. 


No.  643.  The  United  States,  Petitioner,  v.  Authel  H. 
Freeman  et  al.  November  1,  1909.  Petition  for  a  writ  of 
certiorari  to  the  United  States  Circuit  Court  of  Appeals  for 
the  Fourth  Circuit  denied.  The  Attorney  General  and  The 
Solicitor  General  for  petitioner.  Mr.  Charles  A.  Moore  for 
respondents. 


No.  644.  Thomas  S.  Nowell  et  al.,  Petftioners,  v. 
J.  C.  McBride,  as  Receiver,  etc.,  et  al.  November  1, 
1909.  Petition  for  a  writ  of  certiorari  to  the  United  States 
Circuit  Court  of  Appeals  for  the  Ninth  Circuit  denied.  Mr. 
George  M.  Nowdl  for  petitioners.  Afr.  E.  S.  Pilldmry  for 
respondents. 


No.  646.  Jacob  Kerrch  et  al..  Petitioners,  v.  The 
United  States.  November  1,  1909.  Petition  for  a  writ  of 
certiorari  to  the  United  States  Circuit  Court  of  Appeals  for 
the  first  Circuit  denied.  Afr.  James  E.  Cotter  and  Mr.  Conrad 
Reno  for  petitioners.  The  Attorney  General^  The  Solicitor 
General  and  Afr.  Assistant  Attorney  General  Harr  for  re- 
spondent. 


OCTOBER  TERM,  1909.  603 

215  U.  S.         Deoisions  on  Petitions  for  Writs  of  Certiorari. 

No.  634.  Peter  T.  Coffield  et  al.,  Petitioners,  v.  The 
Fletcher  Manufactumnq  Company.  November  8,  1909. 
Petition  for  a  writ  of  certiorari  to  the  United  States  Circuit 
Court  of  Appeals  for  the  Sixth  Circuit  denied.  Mr.  Richard  J. 
McCarty  for  petitioners.  Mr.  Edmund  E.  Wood  for  respondent. 


No.  642.  The  Tunis  Lxtmber  Company  et  al.,  Peti- 
tioners, V.  Cumberland  Lumber  Company.  November  8, 
1909.  Petition  for  a  writ  of  certiorari  to  the  United  States 
Circuit  Court  of  Appeals  for  the  Fourth  Circuit  denied.  Mr. 
Robert  M.  Hughes  for  petitioners.  No  appearance  for  re- 
spondent. 


No.  635.  Guaranty  Trust  Co.  op  New  York,  Peti- 
tioner, V.  Metropolitan  Street  Railway  Company  et  al.  ; 
No.  636.  Morton  Trust  Company,  Petitioner,  v.  Guaranty 
Trust  Company  of  New  York  et  al.  ;  and  No.  654.  Metro- 

POLFTAN  SeCURTTIES  CoMPANY,  PETITIONER,  V.  WiLLIAM  W. 

Ladd,  Receiver,  etc.  November  15,  1909.  Petitions  for 
writs  of  certiorari  to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Second  Circuit  denied.  Mr.  Jtdien  T.  Davies, 
Mr.  Brainard  ToUes  and  Mr.  John  C.  Spooner  for  the  Guaranty 
Trust  Company  of  New  York.  Mr.  Bronson  Winthrop  and 
Mr.  Charles  Thomas  Payne  for  the  Morton  Trust  Company. 
Mr.  Richard  Reid  Rogers  for  the  Metropolitan  Securities  Com- 
pany. Mr.  Arthur  H.  Masten,  Mr.  Matthew  C.  Fleming, 
Mr.  James  Byrne,  Mr.  Frank  H.  Plait,  Mr.  J.  Parker  Kirlin, 
Mr.  W.  M.  Chadboume  and  Mr.  W.  M.  Coleman  for  respond- 
ents in  Nos.  635  and  636,  and  Mr.  Joseph  H.  Choate,  Mr. 
Arthur  H.  Masten  and  Mr.  Robert  C.  Beatty  for  respondents 
in  No.  654. 


No.  656.  The  California  Development  Company,  Pbti- 


604  OCTOBER  TERM,  1909. 

Decisions  on  Petitions  for  Writs  of  Certiorari.         215  U.  S. 

TiONER,  V.  The  New  Liverpool  Salt  Company.  Novem- 
ber 15,  1909.  Petition  for  a  writ  of  certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the  Ninth  Circuit  denied. 
Mr.  Maxwell  Evarts  and  Mr.  Eugene  S.  Ives  for  petitioner. 
Mr.  Charles  Page,  Mr.  Edward  J.  McCiUchen  and  Mr.  Samuel 
Knight  for  respondent. 


No.  431.  Sarah  J.  Eddy,  Petitioner,  v.  The  City  and 
County  of  San  Francisco.  November  15,  1909.  Petition 
for  a  writ  of  certiorari  to  the  United  States  Circuit  Court  of 
Appeals  for  the  Ninth  Circuit  denied.  Mr.  Julias  Kahn  for 
petitioner.    Mr.  A.  B.  Browne  for  respondent. 


No.  665.  Dering  Coal  Company,  PETiriONER,  v.  H.  Er- 
nest Button,  Administrator,  etc.  November  15,  1909. 
Petition  for  a  writ  of  certiorari  to  the  United  States  Circuit 
Court  of  Appeals  for  the  Seventh  Circuit  denied.  Mr.  John  G. 
Thompson  and  Mr.  Charles  Troup  for  petitioner.  Mr.  Lincoln 
B.  Smith  for  respondent. 


No.  662.  Commercial  Mica  Company,  Petitioner,  v. 
Mica  Insulator  Company.  November  29,  1909.  Petition 
for  a  writ  of  certiorari  to  the  United  States  Circuit  Court  of 
Appeals  for  the  Seventh  Circuit  denied.  Mr.  Joseph  R. 
Edson  and  Mr.  William  R.  Rummler  for  petitioner.  Mr. 
William  Houston  Kenyon  for  respondent. 


No.  671.  Liverpool  and  London  and  Globe  Insurance 
Company,  Petitioner,  v.  George  H.  McFadden  bt  al. 


OCTOBER  TERM,  1909.  606 

215  U.  S.  Decisions  on  Petitions  for  Writs  of  Certiorari. 

November  29,  1909.  Petition  for  a  writ  of  certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for  the  Third  Circuit 
denied.  Mr,  Frederick  B,  Campbell  for  petitioner.  Mr.  John 
G.  Johnson  for  respondent. 


No.  666.  Frank  J.  Frame,  FErrrioNER,  v.  Albert  T. 
Ferrell.  December  6,  1909.  Petition  for  a  writ  of  cer- 
tiorari to  the  United  States  Circuit  Court  of  Appeals  for  the 
Sixth  Circuit  denied.  Mr.  Jesse  A.  Fenner  for  petitioner. 
Mr.  William  Howell  for  respondent. 


No.  685.  Samuel  Gompers  et  al.,  Petitioners,  v.  The 
Buck's  Stove  &  Range  Company.  December  6,  1909.  Peti- 
tion for  a  writ  of  certiorari  to  the  Court  of  Appeals  of  the 
District  of  Columbia  granted.  Mr.  J.  H.  Ralston,  Mr.  F.  L. 
Siddons,  Mr.  W.  E.  Richardson  and  Mr.  AUon  B.  Parker  for 
petitioners.    No  brief  filed  for  respondent. 


No.  639.  Henry  D.  Spencer  et  al.,  PETmoNERS,  v. 
Victor  M.  Watkins  et  al.  December  6,  1909.  Petition 
for  a  writ  of  certiorari  to  the  United  States  Circuit  Court  of 
Appeals  for  the  Eighth  Circuit  denied.  Mr.  Newel  H.  Clapp, 
Mr.  Edimrd  F.  TreadweU  and  Mr.  John  S.  Partridge  for 
petitioners.  Mr.  Frank  B.  Kellogg  and  Mr.  C.  A.  Severance 
for  respondents. 


No.  670.  Charles  W.  Morse,  PETmoNER,  v.  The  Unfted 
States.    December  6,  1909.    Petition  for  a  writ  of  certiorari 


606  OCTOBER  TERM,  1909. 

Deciaioiui  on  Petitions  for  Writs  of  Certiorari.         215  U.  S. 

to  the  United  States  Circuit  Court  of  Appeals  for  the  Second 
Circuit  denied.  Afr.  Martin  W.  LUdeton  for  petitioner.  The 
Attorney  General,  The  SolicUor  General  and  Mr.  H,  L.  Stimsan 
for  respondent. 


No.  673.  Nellie  F.  Keiper,  Administratrix,  etc.,  Peti- 
tioner, V.  The  Equttable  Life  Assurance  Society  of  the 
Unfted  States.  December  6,  1909.  Petition  for  a  writ  of 
certiorari  to  the  United  States  Circuit  Court  of  Appeals  for 
the  Third  Circuit  denied.  Mr.  J.  Claude  Bedford  for  petitioner. 
Mr.  Thomas  De  Witt  Cuyler  for  respondent. 


No.  682.  Max  Weber  bt  al.,  PBTrrioNERs,  v.  The  Grand 
Lodge  op  Kentucky,  Free  and  Accepted  Masons.  Decem- 
ber 6,  1909.  Petition  for  a  writ  of  certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the  Sixth  Circuit  denied. 
Mr.  Louis  J.  Blum  and  Mr.  Edgar  C.  Blum  for  petitioners. 
Mr.  Charles  H.  Fisk  and  Mr.  Alexander  Pope  Humphrey  for 
respondents. 


No.  683.  Jacksonville  Towing  &  Wrecking  Company 
ET  AL.,  Petitioners,  v.  The  Steamship  Bayamo,  etc.  De- 
cember 13, 1909.  Petition  for  a  writ  of  certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the  Jifth  Circuit  denied. 
Mr.  H.  Bisbee  and  Mr.  George  C.  BedeU  for  petitioners.  Afr. 
Charles  S.  Haight  for  respondent. 


No.  691.  New  Lhterpool  Salt  Cobipany,  Petttioner,  v. 
California  Development  Company  et  al.  December  13, 
1909.    Petition  for  a  writ  df  certiorari  to  the  United  States 


OCTOBER  TERM,  1909.  607 

215  U.  S.         DedflioDB  on  Petitions  for  Writs  of  Certiorari 

Circuit  Court  of  Appeals  for  the  Ninth  Circuit  denied.  Mr. 
Edward  J.  McCtUchen,  Mr.  Charles  Page  and  Mr.  Samuel 
Knight  for  petitioner.    No  appearance  for  respondent. 


No.  703.  C.  L.  Van  Sice,  Petitioner,  v.  The  Ibex  Mining 
Company.  January  3,  1910.  Petition  for  a  writ  of  certiorari 
to  the  United  States  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit  denied.  Mr.  Edwin  H.  Park  and  Mr.  Samuel  Herridc 
for  petitioner.  Mr.  Charles  J.  Hughes,  Jr.,  and  Mr.  Charles 
Cavender  for  respondent. 


No.  698.  Abraham  Acord  et  al.,  PErrrioNERS,  v.  West- 
ern Pocahontas  Corporation.  January  3,  1910.  Petition 
for  a  writ  of  certiorari  to  the  United  States  Circuit  Court  of 
Appeals  for  the  Fourth  Circuit  denied.  Mr.  Arthur  English 
for  petitioners.  Mr.  J.  L.  Bumgardner  and  Mr.  F.  B.  Enslow 
for  respondent. 


No.  709.  Charles  E.  Davis,  PsTmoNER,  v.  The  United 
States.  January  3,  1910.  Petition  for  a  writ  of  certiorari  to 
the  United  States  Circuit  Court  of  Appeals  for  the  Rfth  Cir- 
cuit denied.  Mr.  Jackson  H.  Ralston  and  Mr.  Joel  Branham 
for  petitioner.  The  Attorney  General  and  The  Solicitor  General 
for  respondent. 


No.  711.  Pbale,  Peacock  <fe  Kerr  of  New  York,  Peti- 
tioner, V.  John  M.  Graham.  January  3, 1910.  Petition  for  a 
writ  of  certiorari  to  the  United  States  Circuit  Court  of  Appeals 


608  OCTOBER  TERM,  1909. 

Decisions  on  Petitions  for  Writs  of  CertiorarL         215  U.  S. 

for  the  First  Circuit  denied.  Mr.  Ezra  R.  Thayer  for  peti- 
tioner. Mr.  Robert  M.  Morse  and  Mr.  Wtlliam  M.  Richardson 
for  respondent. 


No.  717.  The  Steamship  Folmina,  etc.,  Petitioner,  v. 
GusTAVE  A.  Jahn  et  al.  January  10,  1910.  Petition  for  a 
writ  of  certiorari  to  the  United  States  Circuit  Court  of  Appeals 
for  the  Second  Circuit  denied.  Mr,  J.  Parker  Kirlin  and  Mr. 
John  M.  Woolsey  for  petitioner.  Mr.  Frederick  M.  Brown  for 
respondents. 


No.  719.  Westinghouse  Electric  &  Manufacturing 
Company,  Petitioner,  v.  The  Wagner  Electric  Manu- 
facturing Company.  January  17,  1910.  Petition  for  a  writ 
of  certiorari  to  the  United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit  granted.  Mr.  Paid  Bakewell  and  Mr. 
Thomas  B.  Kerr  for  petitioner.   No  appearance  for  respondent. 


No.  586.  Harry  Haynes,  PETmoNER,  v.  The  Baltimore: 
&  Ohio  Railroad  Company.  January  17,  1910.  Petition  for 
a  writ  of  certiorari  to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Sixth  Circuit  denied.  (Mr.  Justice  Lurton  did  not 
participate  in  the  disposition  of  this  application.)  Mr.  OrviUe 
S.  Brumback  for  petitioner.   Mr.  F.  A.  Durban  for  respondent. 


No.  701.  METROPOLirAN  Life  Insurance  Company,  Peti- 
tioner, V.  Eliza  A.  Williamson.  January  17,  1910.  Peti- 
tion for  a  writ  of  certiorari  to  the  United  States  Circuit  Court  of 
Appeals  for  the  Fifth  Circuit  denied.    Mr.  W.  G.  M.  Thomas 


OCTOBER  TERM,  1909.  609 

215  U.  S .       DecifiioiiB  on  Petitions  for  Writs  of  Certi(»ari. 

and  Mr.  Richard  W.  Walker  for  petitioner.   No  appearance  for 
respondent. 


No.  710.  John  R.  Walsh,  Petitioner,  v.  The  United 
States.  January  17, 1910.  Petition  for  a  writ  of  certiorari  to 
the  United  States  Circuit  Court  of  Appeals  for  the  Seventh 
Circuit  denied.  Mr.  John  S.  MiUer,  Mr.  Merritt  Starr  and  Mr. 
E.  C.  Ritsher  for  petitioner.  The  Attorney  General,  The  Solid- 
tor  General  and  Mr.  E.  W.  Sims  for  respondent. 


No.  658.  Commercial  Union  Assurance  Company  (Lim- 
ited), OF  London,  England,  PETmoNBR,  v.  Richmond  Coal 
Company.  January  24, 1910.  Petition  for  a  writ  of  certiorari 
to  the  United  States  Circuit  Court  of  Appeals  for  the  Ninth 
Circuit  denied.  Mr.  T.  C.  Van  Ness  and  Mr.  Walter  D. 
Davidge  for  petitioner.  Mr.  Emery  S.  Sykes  for  respondent. 
Mr.  E.  S.  PiUsbury  and  Mr.  WHliam  A .  Maury  filed  a  brief  as 
amid  curicB  by  leave  of  the  court. 


No.  732.  Fries-Breslin  Company,  Petctioner,  v.  Wil- 
liam Bergan  et  al.  January  24, 1910.  Petition  for  a  writ  of 
certiorari  to  the  United  States  Circuit  Court  of  Appeals  for  the 
Third  Circuit  denied.  Mr.  Roger  Foster  for  petitioner.  Mr. 
Ira  Jewell  WHiiams  and  Mr.  F.  R.  ShaUuck  for  respondents. 


No.  730.  Henry  G.  Thomas,  PBTrnoNER,  v.  Florence 
Hunt  De  Winter  et  al.    January  31,  1910.    Petition  for  a 
writ  of  certiorari  to  the  Court  of  Appeals  of  the  District  of 
VOL.  CCXV--39 


610  OCTOBER  TERM,  1909. 

Deddons  on  Petitioiifl  for  Writs  of  Certiorari.         215  U.  S. 

Columbia  denied.    Mr.  Conrad  H.  Syme  and  Mr.  James  W. 
Beller  for  petitioner.   Mr.  P.  H.  Marshall  for  respondents. 


No.  733.  The  Commissioners  of  Lincoln  Park,  Peti- 
tioner, V,  Westrumite  Company  of  America.  January  31, 
1910.  Petition  for  a  writ  of  certiorari  to  the  United  States  Cir- 
cuit Court  of  Appeals  for  the  Seventh  Circuit  denied.  Mr. 
WiUiam  R.  Rummler  and  Mr,  Eugene  G.  Mason  for  petitioner. 
Mr.  Walter  H.  Chamberlin  for  respondent. 


No.  745.  Virginia  Passenger  &  Power  Company  et  al., 
PETmoNERS,  V.  Lane  Bros.  Co.  January  31,  1910.  Petition 
for  a  writ  of  certiorari  to  the  United  States  Circuit  Court  of 
Appeals  for  the  Fourth  Circuit  denied.  Mr.  Henry  W.  Ander- 
son and  Mr.  Eppa  Hunton,  Jr.,  for  petitioners.  Mr.  Thomas 
S.  Martin  for  respondent. 


No.  748.  The  United  States,  PETmoNER,  v.  J.  R.  Simon 
&  Company.  January  31,  1910.  Petition  for  a  writ  of  cer- 
tiorari to  the  United  States  Circuit  Court  of  Appeals  for  the 
Second  Circuit  denied.  The  Attorney  General,  The  Solicitor 
General,  and  Mr.  Assistant  Attorney  General  Lloyd  for  peti- 
tioner. Mr.  Howard  T.  Walden,  Mr.  Henry  J.  W Aster  and 
Mr.  W.  Wickham  Smith  for  respondents. 


No.  749.  The  United  States,  PETmoNER,  v.  Leopold 
Baruch.  January  31,  1910.  Petition  for  a  writ  of  certiorari 
to  the  United  States  Circuit  Court  of  Appeals  for  the  Second 


OCTOBER  TERM,  1909.  611 

215  U.  S.    Gases  Disposed  of  Without  Consideration  by  the  Gomt. 

Circuit  granted.  The  Attorney  General,  The  Solicitor  General 
and  Mr.  Assistant  Attorney  General  Lloyd  for  petitioner.  Mr. 
Albert  H,  Washburn  for  respondent. 


CASES  DISPOSED  OF  WITHOUT  CONSIDERATION  BY 
THE  COURT  FROM  OCTOBER  11,  1909,  TO  FEBRU- 
ARY 20,  1910. 

No.  3.  United  States  op  America,  Suing  at  the  Costs 

AND   FOR  THE   BeNEFFT   OF   PeNN   IrON   COMPANY,    LIMITED, 

Plaintiff  in  Error,  v.  William  R.  Trigg  Company  and 
Virginia  Trust  Company.  In  error  to  the  Supreme  Court  of 
Appeals  of  the  State  of  Virginia.  October  11, 1909.  Dismissed 
with  costs,  on  motion  of  counsel  for  plaintiff  in  error.  Mr. 
George  Bryan  for  plaintiff  in  error.  Mr.  Frank  W.  Christian 
and  Mr.  Leigh  Robinson  for  defendants  in  error. 


No.  10.  The  People  of  Porto  Rico,  Appellants,  v.  The 
Roman  Catholic  Apostolic  Church  in  Porto  Rico.  Ap- 
peal from  the  Supreme  Court  of  Porto  Rico.  October  11, 
1909.  Dismissed,  per  stipulation.  Mr.  Frank  Feuille,  Mr. 
Charles  Hartzell,  Mr.  Henry  M.  Hoyt,  2d.j  for  appellants. 
Mr.  Paul  FvUer  and  Mr.  Frederic  R.  Coudert  for  appellee. 


No.  14.  The  Roman  Catholic  Apostolic  Church  in 
Porto  Rico,  Appellant,  v.  The  People  of  Porto  Rico. 
Appeal  from  the  Supreme  Court  of  Porto  Rico.  October  11, 
1909.  Dismissed,  per  stipulation.  Mr.  Frederic  R.  Coudert 
and  Mr.  Paul  Fuller  for  appellant.  Mr.  Frank  Feuille^  Mr. 
Charles  Hartzell  and  Mr.  Henry  M.  Hoyt,  2d.,  for  appellees. 


612  OCTOBER  TERM,  1909. 

Gases  Disposed  of  Without  Consideratioii  by  the  Ck>uri.    215  U.  S. 

No.  78.  W.  B.  Hadley,  Acting  Auditor  of  Porto  Rico, 
Appellant,  v.  H.  H.  Scoville,  Clerk,  et  al.  Appeal  from 
the  District  Court  of  the  United  States  for  Porto  Rico.  Octo- 
ber 11,  1909.  Dismissed  with  costs,  on  motion  of  counsel  for 
appellant.  Mr.  Henry  M.  Hayt,  id.,  for  appellant.  Mr.  N. 
B.  K.  PettingiU  for  appellees. 


No.  82.  Supreme  Council  of  the  Royal  Arcanum,  Plain- 
tiff IN  Error,  v.  A.  G.  Brenizer.  In  error  to  the  Supreme 
Court  of  the  State  of  North  Carolina.  October  11, 1909.  Dis- 
missed with  costs,  on  motion  of  counsel  for  plaintifiF  in  error. 
F.  H.  Busbee  and  Mr.  Charles  W.  TiUett  for  plaintiff  in  error. 
No  appearance  for  the  defendant  in  error. 


No.  170.  Julio  0.  Abril,  as  Attorney  in  facf  of  Jose  T. 
SiLVA,  Appellant,  v.  Modesto  Cobian  y  Muniz.  Appeal 
from  the  Supreme  Court  of  Porto  Rico.  October  11,  1909. 
Dismissed  with  costs,  on  motion  of  counsel  for  appellant. 
Mr.  John  Larkin  for  appellant.  Mr.  Charles  F.  Carusi  for 
appellee. 


No.  216.  The  Atchison,  Topeka  &  Santa  Fe  Railway 
Company,  Plaintiff  in  Error,  v.  Emma  M.  Sewell.  In 
error  to  the  Supreme  Court  of  the  State  of  Kansas.  Octo- 
ber 11,  1909.  Dismissed  with  costs,  on  motion  of  counsel  for 
plaintifiF  in  error.  Mr.  Robert  Dunlap  for  plaintifiF  in  error. 
Mr.  Charles  F.  Hutchings  for  defendant  in  error. 


No.  326.  Ward  Lumber  Company,  Incorporated,  Plain- 


OCTOBER  TERM,  1909.  613 

215  U.  S.    Cases  Disposed  of  Without  Consideration  by  the  Court. 

TIFF  IN  Error,  v.  Henderson-White  Manufacturing  Com- 
pany, Incorporated.  In  error  to  the  Supreme  Court  of  Ap- 
peals of  the  State  of  Virginia.  October  11,  1909.  Dismissed 
with  costs,  on  motion  of  counsel  for  plaintifiF  in  error.  Mr. 
Aubrey  E.  Strode  for  plaintifiF  in  error.  No  appearance  for  de- 
fendant in  error. 


No.  403.  Harrison  Crook,  Plaintiff  in  Error,  v.  In- 
ternational Trust  Company  of  Maryland.  In  error  to  the 
Court  of  Appeals  of  the  District  of  Columbia.  October  11, 
1909.  Dismissed  with  costs,  on  motion  of  counsel  for  plaintifiF 
in  error.  Mr,  Wilton  J.  Lambert  for  plaintifiF  in  error.  Mr. 
Walter  C.  Clephane  and  Mr.  W.  Calvin  Chesnut  for  defendant 
in  error. 


No.  404.  Harrison  Crook,  Plaintiff  in  Error,  v.  In- 
ternational Trust  Company  of  Maryland.  In  error  to  the 
Court  of  Appeals  of  the  District  of  Columbia.  October  11, 
1909.  Dismissed  with  costs,  on  motion  of  counsel  for  plain- 
tifiF in  error.  Mr.  Wilton  J.  Lambert  for  plaintifiF  in  error. 
Mr.  Walter  C.  Clephane  and  Mr.  W.  Calvin  Chesnut  for  de- 
fendant in  error. 


No.  17.  The  Irrigation  Land  &  Improvement  Company, 
Appellant,  v.  Ethan  Allen  HrrcHcocK,  Secretary  of  the 
Interior.  Appeal  from  the  Court  of  Appeals  of  the  District  of 
Columbia.  October  22,  1909.  Dismissed  on  motion  of  Mr. 
George  H.  Patrick  for  appellant.  Mr.  George  Turner  and  Mr. 
George  H.  Patrick  for  appellant.  The  Attorney  General,  The 
Solicitor  General  and  Mr.  Joseph  R.  W Aster  for  appellee. 


614  CXTTOBER  TERM,  1909. 

Gases  Disposed  of  Without  Consideration  by  the  Court.    215  TJ.  S. 

No.  33.  International  Textbook  Company,  Appellant, 
V,  The  City  of  Ottumwa.  Appeal  from  the  Circuit  Coilrt  of 
the  United  States  for  the  Southern  District  of  Iowa.  Novem- 
ber 1,  1909.  Dismissed  with  costs,  on  motion  of  counsel  for 
appellant.  Mr.  David  C.  Harrington  for  appellant.  No  ap- 
pearance for  appellee. 


No.  83.  Fairmont  Coal  Company  et  al.,  Appellants,  v. 
Merchants'  Coal  Company.  Appeal  from  the  United  States 
Circuit  Court  of  Appeals  for  the  Fourth  Circuit.  Novem- 
ber 1,  1909.  Dismissed  with  costs,  on  motion  of  counsel  for 
appellants.  Mr.  Edgar  H.  Gans  for  appellants.  Mr.  WiUiam 
A,  Glasgow,  Jr.,  Mr.  Frank  GosneU  and  Mr.  George  Weems 
WHliams  for  appellee. 


No.  84.  Washington  Gas  Light  Company  et  al.,  Appel- 
lants AND  Plaintiffs  in  Error,  v.  Henry  B.  F.  Macfar- 

LAND  ET  AL.,  COMMISSIONERS  OF  THE  DISTRICT  OF  COLUMBIA. 

Appeal  from  and  in  error  to  the  Court  of  Appeals  of  the  District 
of  Columbia.  November  1,  1909.  Dismissed  with  costs,  on 
motion  of  counsel  for  appellants  and  plaintifiFs  in  error.  Mr. 
R.  Ross  Perry,  Mr.  R.  Ross  Perry,  Jr.,  and  Mr.  WiUon  J.  Lamr 
bert  for  appellants  and  plaintiffs  in  error.  Mr.  Edward  H. 
Thomas  for  appellees  and  defendants  in  error. 


No.  304.  Mary  Halligan,  as  Administratrix,  etc.,  Ap- 
pellant, V.  The  Trinidad  Shipping  &  Trading  Company, 
Limited,  et  al.  Appeal  from  the  District  Court  of  the  United 
States  for  the  Southern  District  of  New  York.  November  1, 
1909.    Dismissed,  per  stipulation.   Mr.  W.  W.  Gooch  and  Mr. 


OCTOBER  TERM,  1909.  615 

215  U.  S.    Gases  Disposed  of  Without  Consideration  by  the  Court. 

Frederic  C.  Scojield  for  appellant.    Mr.  J,  Parker  Kirlin  and 
Mr.  Charles  R,  Hickox  for  appellees. 


No.  502.  R.  G.  Mullen,  Appellant,  v.  Fred  Fornofp, 
Captain,  etc.  Appeal  from  the  District  Court  for  the  First 
Judicial  District  of  the  Territory  of  New  Mexico.  Novem- 
ber 1,  1909.  Dismissed  with  costs,  on  motion  of  coimsel  for 
appellant.  Mr,  William  P.  Borland  for  appellant.  No  appear- 
ance for  appellee. 


No.  44.  Oswald  C.  Ludwig,  as  Secretary  op  State  of 
THE  State  of  Arkansas,  Appellant,  v.  The  Chicago,  Rock 
Island  &  Pacific  Railway  Company.  Appeal  from  the  Cir- 
cuit Court  of  the  United  States  for  the  Eastern  District  of 
Arkansas.  November  11,  1909.  Dismissed,  per  stipulation. 
Mr,  George  W.  Hendricks^  Mr,  William  H,  Arnold,  Mr,  William 
F.  Kirby  and  Mr,  Hal  L.  Norwood  for  appellant.  Mr.  Thomas 
S.  Buzbee  for  appellee. 


No.  219.  Alphonse  Dufaur  et  al.,  Appellants,  v.  The 
UNrPED  States.  Appeal  from  the  District  Court  of  the  United 
States  for  the  Northern  District  of  Illinois.  November  29, 
1909.  Dismissed  per  stipulation,  on  motion  of  Mr,  Solicitor 
General  Bowers  for  appellee.  Mr,  Holmes  Conrad  and  Mr,  E, 
N.  Zoline  for  appellants.  The  Attorney  General  and  The 
Solicitor  General  for  appellee. 


No.  55.  Frank  P.  Plamondon,  Plaintiff  in  Error,  v. 
The  State  of  ICansas.    In  error  to  the  Supreme  Court  of  the 


616  OCTOBER  TERM,  1909. 

Gases  Disposed  of  Without  Ck>n8ideratioii  by  the  Court.    215  U.  8. 

State  of  Kansas.  December  2,  1909.  Dismissed  with  costs, 
pursuant  to  the  tenth  rule.  Mr.  C.  A .  Magaw  for  plaintifif  in 
error.    Mr.  Fred  S.  Jackson  for  defendant  in  error. 


No.  444.  Henry  C.  King,  Plaintiff  in  Error,  v.  The 
State  of  West  Virginia  et  al.  In  error  to  the  Supreme 
Court  of  Appeals  of  the  State  of  West  Virginia.  December  14, 
1909.  Dismissed  with  costs,  pursuant  to  the  tenth  rule.  Mr. 
Mayruird  F.  Stiles  and  Mr.  John  G.  Carlisle  for  plaintifif  in 
error.  Mr.  John  F.  Dillon,  Mr.  Harry  Hubbard,  Mr.  Edward 
C.  Lyon,  Mu  William  G.  CorUey,  Mr.  John  A.  Sheppard,  Mr. 
C.  W.  Campbell,  Mr.  Wells  Goodykoontz,  Mr.  D.  J.  F.  Strother 
and  Mr.  L.  C.  Anderson  for  defendants  in  error. 


No.  227.  Atlantic  Coast  Line  Railroad  Company, 
Plaintiff  in  Error,  v.  W.  C.  Geraty.  In  error  to  the  Su- 
preme Court  of  the  State  of  South  Carolina.  December  20, 
1909.  Dismissed  with  costs,  on  motion  of  Mr.  Frederic  D.  Mo- 
Kenney  of  counsel  for  plaintifif  in  error.  Mr.  Frederic  D. 
McKenney  and  Mr.  P.  A.  Willcox  for  plaintifif  in  error.  No 
appearance  for  defendant  in  error. 


No.  539.  The  United  States,  Plaintiff  in  Error,  v. 
American  Bonding  Company  of  Baltimore.  In  error  to  the 
United  States  Circuit  Court  of  Appeals  for  the  Ninth  Circuit. 
January  3, 1910.  Dismissed  on  motion  of  Mr.  Solidtar  General 
Bowers  for  plaintifif  in  error.  The  Attorney  General  and  The 
Solicitor  General  for  plaintifif  in  error.  No  appearance  for  de- 
fendant in  error. 


OCTOBER  TERM,  1909.  617 

215  U.  S.    Cases  Disposed  of  Without  Consideration  by  the  Court. 

No.  540.  The  United  States,  Plaintiff  in  Error,  v.  Ru- 
dolph AxMAN.  In  error  to  the  United  States  Circuit  Court  of 
Appeals  for  the  Ninth  Circuit.  January  3,  1910.  Dismissed 
on  motion  of  Mr,  Solicitor  General  Bowers  for  plaintiff  in 
error.  The  Attorney  General  and  The  Solicitor  General  for 
plaintiff  in  error.    No  appearance  for  defendant  in  error. 


No.  528.  The  Atchison,  Topeka  &  Santa  Fe  Railway 
Company,  Plaintiff  in  Error,  v.  Mitchell  E.  Pickens.  In 
error  to  the  Court  of  Civil  Appeals  for  the  Fourth  Supreme 
Judicial  District  of  the  State  of  Texas.  ^January  3, 1910.  Dis- 
missed with  costs,  on  motion  of  Mr,  Evans  Browne,  in  behalf 
of  counsel  for  plaintiff  in  error.  Mr.  Andrew  H.  CviweU 
and  Mr.  Gardiner  Lathrop  for  plaintiff  in  error.  Mr.  Waters 
Davis  for  defendant  in  error. 


No.  341.  Central  op  Georgia  Railway  Company,  Appel- 
lant, V.  William  A.  Wright,  Comptroller-General  op 
Georgia,  et  al.  Appeal  from  the  Circuit  Court  of  the  United 
States  for  the  Northern  District  of  Georgia.  January  3, 1910. 
Dismissed  with  costs,  on  motion  of  counsel  for  appellants. 
Mr.  Alexander  R.  Lawton,  Mr,  Henry  C,  Cunningham  and  Mr. 
T.  M.  Cunningham^  Jr.,  for  appellant.  No  appearance  for  ap- 
pellees. 


No.  420.  John  Hobson  Nelson,  Appellant,  v.  The  Cfty 
OP  Murfreesboro  et  al.  Appeal  from  the  Circuit  Court  of 
the  United  States  for  the  Middle  District  of  Tennessee.  Janu- 
ary 3,  1910.  Dismissed  with  costs,  on  motion  of  counsel  for 
appellant.  Mr.  John  J.  Vertrees  for  appellant.  No  appearance 
for  appellees. 


618  OCTOBER  TERM,  1909. 

Cases  Disposed  of  Without  Consideration  by  the  Court.     215  U.  S. 

No.  76.  J.  A.  Hughes,  Plaintifp  in  Error,  v.  The  Colun 
County  National  Bank.  In  error  to  the  Circuit  Court  of  the 
United  States  for  the  District  of  Colorado.  January  7,  1910. 
Dismissed  with  costs,  pursuant  to  the  tenth  rule.  Mr.  Clay- 
ton C  Dorsey  and  Mr,  William  D.  Hodges  for  plaintifiF  in  error. 
No  appearance  for  defendant  in  error. 


.  No.  175.  CuDAHY  Packing  Company,  Plaintiff  in  Error, 
V.  The  State  of  Minnesota.  In  error  to  the  Supreme  Court 
of  the  State  of  Minnesota.  January  18, 1910.  Dismissed,  per 
stipulation.  Mr.  Moritz  Heim  for  plaintiff  in  error.  Mr,  E,  T, 
Young,  Mr.  George  W.  Peterson  and  Mr,  Al  J.  Smith  for  de- 
fendant in  error. 


No.  507.  Woodward  Carriage  Company  et  al.,  Appel- 
lants, V,  Pitts  Lhtery  Company  et  al.  Appeal  from  the 
District  Court  of  the  United  States  for  the  Western  District  of 
Texas.  January  19, 1910.  Dismissed  with  costs,  on  motion  of 
counsel  for  appellants.  Mr.  T,  D.  Cobbs  for  appellants.  No 
appearance  for  appellees. 


No.  338.  The  Unfted  States,  Plaintiff  in  Error,  v. 
Charles  S.  Sargent.  In  error  to  the  United  States  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit.  January  24,  1910. 
Dismissed  on  motion  of  Mr,  Solicitor  General  Bowers  for  plain- 
tiff in  error.  The  Attorney  General  and  The  Solicitor  Genercl 
for  plaintiff  in  error.  Mr,  Luther  C.  Harris  for  defendant  in 
error. 


No.  750.  Fred  Anderson,  Plaintiff  in  Error,  v.  The 


OCTOBER  TERM,  1909.  619 

215  U.  S.  Case  Disposed  of  in  Vacation. 

United  States.  In  error  to  the  District  Court  of  the  United 
States  for  the  District  of  Minnesota.  January  24,  1910. 
Docketed  and  dismissed  on  motion  of  Mr.  Solicitor  General 
Bowers  for  defendant  in  error.  The  Attorney  General  and  The 
Solicitor  General  for  defendant  in  error.  No  appearance  for 
plaintifiF  in  erro'-. 


No.  109.  T.  M.  Stanclift  et  al.,  etc.,  Appellants,  v. 
Charlie  Fox  et  al.  Appeal  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit.  January  24,  1910. 
Dismissed  with  costs  pursuant  to  the  tenth  rule.  Mr.  William 
T,  Hutchings  for  appellant.    Mr.  Preston  C.  West  for  appellees. 


No.  695.  Rachel  A.  Richardson,  Claiming  to  be  Rachel 
A.  Brown,  Plaintiff  in  Error,  v.  Mary  S.  Reeves  et  al. 
In  error  to  the  Court  of  Appeals  of  the  District  of  Columbia. 
January  26,  1910.  Dismissed  with  costs,  on  motion  of  counsel 
for  plaintifiF  in  error.  Mr.  Tracy  L.  Jeffords  for  the  plaintifiF  in 
error.  Mr.  Benjamin  H.  Schwartz  and  Mr.  Milton  Strasburger 
for  defendants  in  error. 


CASE  DISPOSED  OF  IN  VACATION. 

No.  65.  Patrick  Cox,  Appellant,  v.  Luman  T.  Hoy, 
Unfied  States  Marshal  for  the  Northern  District  of 
Illinois.  Appeal  from  the  District  Court  of  the  United  States 
for  the  Northern  District  of  Illinois.  July  7,  1909.  Dismissed 
pursuant  to  the  28th  rule.  Mr.  William  DiUon  for  appel- 
lant. Mr.  WiUiam  G.  Johnson  and  The  Attorney  General  for 
appellee. 


INDEX. 


ACTIONS. 

See  Constitutional  Law,  3 ; 
Equity,  2,  3,  4,  7 ; 
Pabtibs. 

ACTS  OF  CONGRESS. 

Commerce,  Act  of  February  4,  1887,  §  15,  ajs  amended  in  1006  (see 
Courts,  15) :  BaUo,  <St  Ohio  R,  R,  Co,  v.  Pitcaim  Coed  Co,,  481 
(see  Interstate  Commerce  Commission,  6):  Interstate  Commerce 
Commission  v.  Illinois  Central  R.  R.  Co.,  452.  Section  23  added 
in  1889  and  §  15  as  amended  in  1906  (see  Mandamus,  6) :  BaUo.  & 
Ohio  R.  R,  Co,  V.  Pitcaim  Coal  Co.,  481.  Hepburn  Act  of  June  29, 
1906,  §  15  (see  Commerce,  4) :  Interstate  Commerce  Commission  v. 
Stickney,9S, 

Conspiracy,  Rev.  Stat.,  §  5440  (see  Criminal  Law,  2) :  United  States  v. 
Steoenson  (No.  2),  200. 

Copyrights,  Act  of  July  8,  1870,  16  Stat.  212  (see  Copyrights,  2) : 
Caliga  v.  Inter  Ocean  Newspaper  Co.,  182. 

Custobis,  Customs  Administrative  Act  of  June  10,  1890,  §  9,  26  Stat. 
131  (see  Customs  Law,  1) :  United  States  v.  Mescall,  26.  Tariff 
act  of  July  24,  1897,  }  297,  30  Stat.  151  (see  Customs  Law,  2) : 
Komada  v.  United  States,  392. 

Employers'  Liability  Act  of  June  11,  1906,  34  Stat.  232  (see  Em- 
ployers' Liability  Act) :  El  Paso  &  Northeastern  Ry,  Co,  v.  (7u- 
Oerrez,  87. 

Immigration,  Act  of  February  20,  1907,  34  Stat.  898  (see  Statutes 
A  4) :  United  Stales  v.  Stevenson,  190.  Section  4  (see  Criminal 
Law,  2) :  lb, 

Indians,  Act  of  February  8,  1887,  24  Stat.  388  (see  Indians,  2,  4) : 
United  States  v.  Celestine,  278.  Act  of  May  8,  1906,  34  Stat.  182 
(see  Indians,  4) :  Ih, 

Judiciary,  Act  of  1789  (see  Courts,  1) :  Waterman  v.  Canal-Louisiana 
Bank  Co.,  33.  Act  of  March  3,  1875,  18  Stat.  47,  as  amended  by 
act  of  March  3,  1887,  24  Stat.  552,  corrected  by  act  of  August  13, 
1888,  25  Stat.  433  (see  Jurisdiction,  C  2) :  Maam  Grocery  Co,  v. 

021 


622  INDEX. 

AOardic  Coast  Line  R.  R.  Co.,  501.  Act  of  March  3,  1891,  §  5, 
26  Stat.  826,  as  amended  January  20,  1897,  29  Stat.  492  (see 
Jurisdiction,  A  4,  5,  6) :  Mechanical  Appliance  Co,  v.  CasUeman, 
437;  The  Steamship  Jefferson,  130.  Act  of  February  11,  1903, 
§  1,  32  Stat.  823  (see  Jurisdiction,  A  3) :  Baltimore  &  Ohio  R.  R, 
Co.  V.  Interstate  Com,  Com,,  216;  Southern  Pacific  Co,  v.  Interstate 
Com.  Com,,  226.  Criminal  Appeals  Act  of  March  2,  1907,  34  Stat. 
1246  (see  Jurisdiction,  A  1,  2):  United  Stales  v.  Cor6ett,  233. 
Rev.  Stat.,  §  709  (see  Jurisdiction,  A  7,  8,  9,  11,  IS):  El  Paso  dt 
Northeastern  Ry.  Co.  v.  Gutierrez,  87;  Sylvester  v.  Washington,  80; 
First  National  Bank  v.  EsthermUe,  341;  Scully  v.  Squier,  144; 
Kansas  City  Star  Co.  v.  Julian,  589.  Rev.  Stat.,  §  914  (see  CJourte, 
12):  Mechanical  Appliance  Co.  v.  CasUeman,  437  (see  Practice 
and  Procedure,  5) :  VirginiarCarolina  Chemical  Co,  v.  Kirven,  252. 

National  Banks,  Rev.  Stat.,  §  5209  (see  Criminal  Law,  4,  Jurisdic- 
tion, A  2,  Statutes,  A  2) :  United  Stales  v.  CorheU,  233.  Rev.  Stat., 
§  5311  (see  Statutes,  A  2) :  76. 

Oleomargarine,  Act  of  May  9,  1902,  §  6,  32  Stat.  193  (see  Statutes, 
A  7) :  United  States  v.  Union  Supply  Co.,  50. 

Philippine  Organic  Act  of  July  1,  1902,  32  Stat.  691  (see  Jurisdic- 
tion, A  10):  Reams  v.  Fiama,  16.  Section  22  (see  Philippine 
Islands,  1) :  76.  Sections  28  and  45  (see  Philippine  Islands,  2,  3) : 
76. 

Public  Lands,  Act  of  July  1, 1862, 12  Stat.  489  (see  Public  Lands,  4) : 
Union  Padfi/i  R,  R.  Co,  v.  Harris,  386.  Oregon  Donation  Act  of 
September  27,  1850,  9  Stat.  496,  as  amended  July  17,  1854,  §  2, 
10  Stat.  305  (see  Public  Lands,  6) :  Sylvester  v.  Washington,  80. 
Rev.  Stat.,  §2387  (see  Jurisdiction,  A  11;  Public  Lands,  5): 
SeuUy  V.  Squier,  144. 

Public  Works,  Labor  and  Material  Law  of  February  24, 1905, 33  Stat. 
811,  amending  act  of  August  13,  1894,  28  Stat.  278  (see  Public 
Works,  1,  3) :  Mankin  v.  Ludowici^eladon  Co,,  533. 

ADMIRALTY. 

1.  Jurisdiction  of  case  involving  salvage  service  to  vessel  in  dry  dock. 
Salvage  service,  over  which  a  court  of  admiralty  has  jurisdiction,  may 

arise  from  all  perils  which  may  encompass  a  vessel  when  on 
waters  within  the  admiralty  jurisdiction  of  the  United  States, 
and  this  includes  services  rendered  to  a  vessel  undergoing  repairs 
in  dry  dock  and  in  danger  of  being  destroyed  by  fire  which  origi- 
nated on  land.     The  Steamship  Jefferson,  130. 

2.  Jurisdiction  over  vessel  in  dry  dock. 

A  vessel  used  for  navigation  and  commerce  does  not  cease  to  be  a 


INDEX.  623 

subject  of  admiralty  jurisdiction  because  temporarily  in  a  dry 
dock  without  water  actually  flowing  around  her.    /&. 

See  Jurisdiction,  A  5. 

ALIEN  CONTRACT  LABOR. 

See  Criminal  Law,  2; 
Statutes,  A  4. 

ALLOTTEE  INDIANS. 
See  Indians,  2,  4. 

AMENDMENT  OF  PLEADINGS. 

5ee  Pleading,  2; 

Practice  and  Procedure,  1. 

APPEAL  AND  ERROR. 

1.  Propriety  of  method  of  bringing  up  fudgment  of  Supreme  Court  of 

Philippine  Islands. 
Writ  of  error  and  not  appeal  is  the  proper  method  to  bring  up  to  this 
court  a  judgment  of  the  Supreme  Court  of  the  Philippine  Islands 
in  cases  affecting  title  to  land  in  Court  of  Land  Registration. 
(Cariho  V.  Insular  Oovemment,  212  U.  S.  449.)  Tiglao  v.  Insular 
Govemmenty  410. 

• 

2.  When  writ  of  error  actually  brought. 

A  writ  of  error  is  not  actually  brought  until  filed  in  the  court  which 
rendered  the  judgment,  and  the  same  rule  is  applicable  to  ap- 
peals. (Credit  Company  v.  Arkansas  Central  Railway,  128  U.  S. 
261.)    Old  Nick  WiUiams  Co.  v.  United  States,  541. 

3.  Time  for  taking  appeals  from  one  Federal  court  to  another. 

The  statutory  time  for  taking  appeals  from  one  Federal  court  to 
another  is  prescribed  by  act  of  Congress  and  must  be  calculated 
accordingly;  it  cannot  be  extended  by  order  of  the  court.    /&. 

4.  Delay  infUing  writ  not  excused  by  delay  in  settling  bill  of  exceptions. 
Assignment  of  errors  does  not  require  the  previous  settlement  of  the 

bill  of  exceptions,  and  failure  to  file  the  writ  within  the  statutory 
time  is  not  excused  because  there  was  delay  on  the  part  of  the 
trial  judge  in  settling  the  bill.    lb. 

5.  Scope  of  review  on  writ  of  error  where  rights  depend  upon  validity 

of  a  deed  under  an  act  of  Congress. 
On  a  writ  of  error  where  the  rights  of  the  parties  depend  upon  the 


624  INDEX. 

validity  of  a  deed  under  an  act  of  Congress  this  court  is  con- 
fined to  the  question  of  validity  under  the  statute  and  the  effect 
of  the  deed,  if  valid,  upon  the  later  rights  and  acquisitions  of 
the  grantor  is  a  matter  of  local  law;  and,  in  this  case,  the  oowri 
will  not  disturb  the  assumption  of  the  state  court  that  a  settler 
giving  a  valid  deed  before  patent  perfected  the  title  and  obtained 
the  patent  on  behalf  of  his  grantee  or  else  that  the  patent  enured 
to  the  benefit  of  the  grantee.    SylvenUr  v.  WaahingUmf  80. 

APPELLATE  JURISDICTION. 
See  Jurisdiction. 

APPLIED  CASES. 
See  Cases  Appued. 

APPROVED  CASES. 
See  Cases  Approved. 

ASSESSMENT  OF  STOCK. 
See  National  Banks. 

ASSIGNMENTS  OF  ERROR 

See  Appeal  and  Error,  4; 

Practice  and  Procedure,  2, 3. 

ATTORNEYS. 

Attendance  at  court;  notice  of  proceedings  presumed. 

Attorneys  of  record  are  supposed  to  be  present  during  the  terms  of 
the  court  in  which  their  causes  are  pending,  and  are  chargeable 
with  notice  of  proceedings  transpiring  in  open  court.  Rio  Grande 
Dam  &c.  Co,  v.  United  States,  266. 

BANKRUPTCY. 

See  Banks  and  Banking,  5; 
Federal  Question. 

BANKS  AND  BANKING. 

1,  Securities;  duty  of  bank  to  return  on  refusal  to  use  as  requested. 

When  a  bank  refuses  to  do  the  particular  thing  requested  with  securi- 
ties delivered  to  it  for  that  purpose  only,  it  is  its  duty  to  return 
the  securities  and  iio  general  lien  in  its  favor  attaches  to  them. 
Hanover  Bank  v.  Suddath,  110. 


INDEX.  625 

2.  lAen  of  hank  on  securities  deposited  with  it  for  a  pofficukar  purpose. 
The  fact  that  a  bank  has  in  its  possession  securities  which  were  sent 

to  it  for  a  particular  purpose  and  which  it  is  its  duty  to  return 
to  the  sender,  does  not  justify  its  retaining  them  for  any  other 
purpose  under  a  banker's  agreement  giving  it  a  general  lien  on 
all  securities  deposited  by  the  sender.    Ih, 

3.  Lien  of  bank  on  securities — Construction  of  agreement. 

A  banker's  agreement  giving  a  general  lien  on  securities  deposited  by 
its  correspondent  will  not  be  construed  so  as  to  give  it  a  broad 
meaning  beyond  its  evident  scope  and  in  conflict  with  the  precepts 
of  duty,  good  faith  and  confidence  necessary  for  commerdal 
transactions;  nor  will  a  printed  form  prepared  by  the  banker  be 
so  extended  by  the  construction  of  any  ambiguous  language.    lb, 

4.  Securities;  retention  for  purpose  other  than  that  intended.    Implied 

consent. 
In  this  case  it  was  held  that  the  retention  by  a  bank  of  securities  for 
a  purpose  different  from  that  for  which  they  were  sent  by  its 
correspondent  could  not  be  predicated  on  the  consent  of  the 
latter,  and  that  inaction  of  the  correspondent  could  not  be  con- 
strued as  consent.    lb, 

6.  Right  of  bank  to  set  off  overdraft  of  bankrupt  against  paper  sent  it  for 
discount  and  wrongfully  retained. 

Where  a  bank,  after  refusing  to  discount  paper  sent  to  it  by  the 
insolvent  for  that  purpose,  has  retained  the  paper,  it  cannot, 
as  agunst  general  creditors,  set  off  against  that  paper,  or  its 
proceeds,  the  bankrupt's  overdraft  although  made  after  such 
refusal  and  pending  the  retention  of  the  paper.  Hanover  Bank 
v.  Suddath  (No.  2),  122. 

BILL  OF  EXCEPTIONS. 
See  Appeal  and  Error,  4. 

CAR  DISTRIBUTION. 

See  Interstate  Commerce  Commission,  2-7 ; 
Mandamus,  7. 

CARRIERS. 

jSee  Commerce,  1-6. 

Employers'  Liability  Act; 
Interstate  Commerce  Commission,  2-7. 

VOL.  ocxv — 40 


1 


626  INDEX. 

CASES  APPLIED. 

Shivdy  v.  Bawlby,  152  U.  S.  1,  applied  in  McGilvra  v.  Ross,  70. 
Texas  <St  Pacific  Ry.  Co.  v.  AhUene  Cotton  OU  Co.,  204  U.  S.  426, 
apptied  in  Baltimore  <k  Ohio  R,  R.  Co.  v.  Pitcaim  Coal  Co,,  481. 

CASES  APPROVED. 

Hyde  v.  Southern  Ry,  Co,,  SI  App.  D.  C.  466,  approved  in  El  Paso  <k 
Northeastern  Ry,  Co,  v.  Gutierrez,  87. 

CASES  DISTINGUISHED. 

Matter  o/Heff,  197  U.  S.  488,  distinguished  in  United  States  v.  Celestine, 

278. 
Southern  Railway  Co,  v.  Tift,  206  U.  S.  428,  distinguished  in  BaUimore 

cfe  Ohio  R,  R,  Co.  v.  Pitcaim  Coal  Co,,  481. 

CASES  EXPLAINED. 

Employers'  Liability  Cases,  207  U.  S.  463,  explained  in  El  Paso  A 

Northeastern  Ry.  Co.  v.  Gutierrez,  87. 
Lowrey  v.  Hawaii,  206  U.  S.  206,  construed  in  Lowrey  v.  Hawaii,  554. 

CASES  FOLLOWED. 

Anderson  v.  Carkins,  135  U.  S.  483,  followed  in  Sylvester  v.  Washing' 

ton,  80. 
Atchison,  Topeka  A  Santa  Fe  Ry.  v.  Sowers,  213  U.  S.  55,  followed  in 

El  Paso  A  Northeastern  Ry.  Co.  v.  Gutierrez,  87. 
Bacon  v.  Texas,  163  U.  S.  207,  followed  in  Hvbert  v.  New  Orleans,  170. 
Baltimore  A  Ohio  R.  R.  Co.  v.  Interstate  Com,  Com.,  215  U.  S.  216, 

followed  in  United  States  v.  Terminal  Railroad  Assodatian,  595. 
Carina  v.  Insular  Government,  212  U.  S.  449,  followed  in  Reavis  v. 

Fianza,  16;  Tiglao  v.  Insular  Government,  410. 
Castillo  V.  McConnico,  168  U.  S.  674,  followed  in  Berger  v.  Tracy,  594. 
Cor&gtt  V.  JNTiitf,  10  Wall.  464,  followed  in  FaU  v.  Eastin,  1. 
Credit  Company  v.  ArAxziMOA  Central  Railway,  128  U.  S.  261,  followed 

in  OW  Nick  WiUiams  Co.  v.  l/nited  States,  541. 
Goldey  v.  Morning  News  Co.,  156  U.  S.  518,  followed  in  Mechanical 

Appliance  Co.  v.  CasHeman,  437. 
^iK  V.  i4mmcan  Surety  Co.,  200  U.  S.  197,  foUowed  in  Mankin  v. 

Ludovrid-Celadon  Co.,  533. 
Interstate  Com.  Com.  v.  /Htnow  Ccn/raZ  /?.  /?.  Co.,  215  U.  S.  452,  fol- 
lowed in  Interstate  Com.  Com.  v.  Chicago  A  Alton  R.  R.  Co.,  479; 

BaUimore  A  Ohio  R.  R.  Co.  v.  Pitcaim  Coal  Co.,  481. 
Kansas  v.  Colorado,  206  U.  S.  46,  followed  in  McGilwa  v.  Ross,  70. 


INDEX.  627 

Kesder  v.  Eldred,  206  U.  S.  285,  followed  in  BriU  v.  Washington  Ry.  <St 

Electric  Co.,  527. 
Loeber  v.  Schroedeff  149  U.  S.  580,  followed  in  Kansas  City  Star  Co. 

V.  Julian,  589. 
McIAsh  V.  RojBf,  141  U.  S.  661,  followed  in  Pfadzer  v.  Bach  Fur  Co., 

584;  Remick  <k  Co.  v.  Stem,  585. 
Macfadden  v.   l/nited  iS^a/e«,  213  U.  S.  288,  followed  in  Hdvetia- 

Swiss  Fire  Ins.  Co.  v.  Brandenstein,  588. 
Nutt  V.  Knut,  200  U.  S.  12,  followed  in  Sylvester  v.  Washington,  80. 
Remington  v.  Central  Pacific  R.  R.  Co.,  198  U.  S.  95,  followed  in 

Mechanical  Appliance  Co.  v.  Castleman,  437. 
i^iMse^^  V.  Southard,  12  How.  139,  followed  in  TTog^  v.  HerbeH,  546. 
t/nt^  ^to^  V.  CelesUne,  215  U.  S.  278,  followed  in  United  States  v. 

Sutton,  291. 
(/nited  iStotes  v.  Keitel,  211  U.  S.  370,  followed  in  United  States  v. 

Stevenson,  190. 
Uni^  iSto^  V.  Larkin,  208  U.  S.  333,  followed  in  The  Steamship 

Jefferson,  130. 

CERTinCATE. 

See  Congress,  Powers  of,  2; 
Jurisdiction,  A  3,  6; 
Practice  and  Procedure,  14. 

CERTIORARI. 
For  decisions  on  petitions  for  writs  of  certiorari,  see  p.  596. 

CHARGES. 
See  Commerce,  2-6. 

CHARTERS 

See  Constitutional  Law,  5; 
Judgments  and  Decrees,  5. 

CHOCTAW  INDIANS. 
See  Indians,  1. 

aRCUIT  COURTS. 

iSce  Courts; 
Jurisdiction. 

CITIZENSHIP. 

See  Indians,  4; 
Jurisdiction. 


628  INDEX. 

CLASSIFICATION  OF  IMPORTS. 
See  Gusroiis  Law,  2,  3. 

CLOUD  ON  TITLE. 
See  Equity,  2,  3. 

COMITY. 
See  Courts,  9. 

COMMERCE. 

1.  Campeneatian  to  which  carrier  entitled. 

A  carrier  may  charge  and  receive  compensation  for  services  that  it 
may  render,  or  procure  to  be  rendered,  off  its  own  line,  or  outside 
of  the  mere  transportation  thereover.  IrUerstate  Com,  Com,  v. 
Stickney,  98. 

2.  RecLSonableneea  of  terminal  charge  exacted  by  carrier. 

Where  the  terminal  charge  is  reasonable  it  cannot  be  condemned,  or 
the  carrier  charging  it  required  to  change  it  because  prior  chaiges 
of  connecting  carriers  make  the  total  rate  unreasonable,    lb, 

3.  Reaeonableness  of  charge;  considerations  in  determining. 

In  determining  whether  the  charge  of  a  terminal  company  is  or  is 
not  reasonable  the  fact  that  connecting  carriers  own  the  stock 
of  the  terminal  company  is  immaterial,  nor  does  that  fact  make 
the  lines  of  the  terminal  company  part  of  the  lines  or  property  of 
such  connecting  carriers.    lb, 

4.  Hepburn  Act;  charges  embraced  within  §  15. 

The  inquiry  authorized  by  §  15  of  the  Hepburn  Act  of  June  29,  1906, 
c.  3591,  34  Stat.  584,  relates  to  all  charges  made  by  the  carrier; 
and,  on  such  an  inquiry,  the  carrier  is  entitled  to  haV^  a  finding 
that  a  particular  charge  is  unreasonable  before  he  is  required  to 
change  it.    lb. 

5.  Charges  of  carriers;  remedy  of  shipper  for  excessive  charges. 
Where  the  charge  of  a  terminal  company  is  in  itself  reasonable  the 

wrong  of  a  shipper  by  excessive  aggregate  charges  should  be  cor- 
rected by  proceedings  against  the  connecting  carrier  guilty  of  the 
wrong.    lb. 

6.  Charges  of  carriers;  when  prohibition  justified. 

The  convenience  of  the  commission  or  the  court  is  not  the  measure 


INDEX.  629 

of  justice,  and  will  not  justify  striking  down  a  terminal  charge 
when  the  real  overcharge  is  the  fault  of  a  prior  carrier.    /&. 
iSeeCouBTB,   13,    14,  15;  Intbbbtatb  Commercx  Coif- 

Emplotsbs'  LiABiLrnr  mission,  2-7; 

Act;  Mandamus,  6,  7; 

Tebbitoribs,  1. 

CONFLICT  OF  AUTHORITY. 
See  States,  2,  4. 

CONFLICT  OF  COURTS. 
See  CouBTS. 

CONFLICT  OF  LAWS. 
See  Constitutional  Law,  8. 

CONGRESS. 

A.  Acts  of. 
See  Acts  of  Congress. 

B.  Intent  of. 
See  Copyrights,  2. 

C.  Powers  of. 

1.  To  reffulaie  jmniskment  of  crimes. 

It  is  within  the  power  of  Congress  to  regulate  the  punishment  of 
crimes  and  it  may  make  the  punishment  for  conspiring  to  com- 
mit a  crime  greater  than  that  for  committing  the  crime  itself. 
United  Staiee  v.  Steveneon  (No.  2),  200. 

2.  As  respects  the  jurisdiction  of  this  court. 

Congress  cannot  extend  the  original  jurisdiction  of  this  court  beyond 
that  prescribed  by  the  Constitution;  and  an  act  providing  for 
certifying  questions  of  law  will  not  be  construed  as  permitting 
certification  of  the  entire  case  before  any  judgment  has  been  ren- 
dered below.  Baltimore  &  Ohio  R.  R.  Co.  v.  InterdaU  Com. 
Com.,  216. 

See  Employers'  Liability        Public  Lahds,  2; 
Act,  2;  Statutes,  A  8; 

Indianb,  6;  Tkrritosibs,  1. 

CONSPIRACY. 

See  Concress,  Powkbs  of,  1 ; 
Criminal  Law,  2, 


630  INDEX. 

CONSTITUTIONAL  LAW. 

Commgree  clause.    See  EBiPLOTrnts'  Liabclrt  Act; 

Terbttobies,  1. 

1.  Contract  clause;  impairment  of  charter  contract  obligation.   Invalidity 

of  Minneapolis  street  railway  rate  ordinance  of  1907. 
The  ordinance  granted  by  the  city  of  MinneapoUs,  in  1875,  to  the 
Minneapolis  Street  Railway  for  the  life  of  its  charter  continues 
for  fifty  years  from  1873,  when  the  corporation  was  oiganized, 
and  the  fare  cannot  be  reduced  during  that  period  below  five 
cents;  and  the  ordinance  of  1907,  directing  the  sale  of  six  tickets 
for  twenty-five  cents  is  vdd  under  the  contract  clause  of  the 
Constitution.    Minneapolis  v.  Street  Railway  Co,,  417. 

2.  Contract  clause;  impairment  of  charter  contract  obligation.    Power  of 

State  to  determine  procedure  for  transfer  of  stock  of  corporation. 
Validity  of  Kansas  law  of  1899. 
The  State  creating  a  corporation  may  determine  how  transfers  of  its 
stock  shall  be  made  and  evidenced,  and  a  change  in  the  law  im- 
posing no  restraint  upon  the  transfer,  but  only  affecting  the 
method  of  procedure,  does  not  impair  the  obligation  of  the  charter 
contract  within  the  meaning  of  the  contract  clause  of  the  Federal 
Constitution;  and  so  held  that  the  corporation  law  of  Kansas  of  . 
1899  is  not  void  as  to  stockholders  who  purchased  stock  prior 
thereto  and  sold  it  thereafter,  because  it  required  a  statement 
of  the  transfer  of  stock  to  be  filed  in  the  office  of  the  Secretary 
of  State  in  order  to  relieve  the  transferor  of  stockholder's  liability, 
the  act  not  depriving  him  of  any  defense  that  might  be  made  at 
the  time  the  stock  was  acquired.    Henley  v.  Myers,  373. 

3.  Contract  clause;  impairment  of  obligation  of  stockholder's  contract 

by  State  in  changing  methods  of  procedure  in  actions  to  enforce 
liability. 
Methods  of  procedure  in  actions  on  contract  that  do  not  affect  sub- 
stantial rights  of  parties  are  within  the  control  of  the  State,  and 
the  obligation  of  a  stockholder's  contract  is  not  impaired  within 
the  meaning  of  the  contract  clause  of  the  Federal  Constitution 
by  substituting  for  individual  actions  for  statutory  liability  a 
suit  in  equity  by  the  receiver  of  the  insolvent  corporation;  and 
so  held  as  to  the  corporation  law  of  Kansas  of  1899  amending 
prior  laws  to  that  effect.    lb. 

4.  Contract  clause — Effect  of  Louisiana  act  of  November  5,  1870,  to 

impair  obligation  of  contracts. 
Act  of  November  5,  of  1870,  of  State  of  Louisiana,  providing  for  regis- 


INDEX.  631 

tration  and  collection  of  judgments  against  the  city  of  New 
Orleans  so  far  as  it  dela3r8  the  payment,  or  collection  of  taxes  for 
the  payment,  of  contract  claims  existing  before  the  passage  of 
the  act  is  void  as  impairing  the  obligation  of  contracts  within  the 
meaning  of  the  Federal  Constitution.    Hvbert  v.  New  Orleans^  170. 

See  Corporations,  3,  5; 
Inlra,  5. 

Criminal  prosecution.    See  Criminal  Law,  1. 

5.  Due  process  of  law;  deprivoHon  of  property  without;  effedt  of  injuno- 

lion  against  maintenance  of  expired  charter  rights. 
Following  the  construction  given  by  the  state  court,  held  that  where 
a  charter  for  a  toll-road  provided  that  the  privileges  granted 
should  continue  fifty  years  subject  to  the  right  of  the  county  to 
acquire  it  after  twenty  years,  all  privileges  ceased  on  the  expirar 
tion  of  the  fifty  years;  and  the  owner  of  the  franchise  was  not 
deprived  of  his  property  without  due  process  of  law,  nor  was  the 
obligation  of  the  contract  in  its  charter  impaired,  by  an  injunc- 
tion, from  further  midntaining  toll-gates  on  such  road.  Scott 
County  Road  Co.  v.  Mines,  336. 

Extraction.    See  Extradition,  2. 

6.  FuU  faith  and  credit;  judicial  proceedings  held  entitled  to. 

Where  the  fundamental  fact  in  issue  in  a  suit  by  a  wife  for  separate 
maintenance  is  whether  there  was  a  marriage,  and  the  court 
having  jurisdiction  finds  that  the  wife's  petition  should  not  be 
granted  but  should  be  dismissed,  the  courts  of  another  State 
must,  under  the  full  faith  and  credit  clause  of  the  Constitution, 
r^ard  such  decree  as  determining  that  there  was  no  marriage 
even  though  the  husband  may  have  asserted  other  defenses;  nor 
can  the  wife,  in  a  suit  depending  solely  on  the  issue  of  whether 
there  was  a  marriage,  prove  by  oral  testimony,  in  the  absence 
of  a  bill  of  exceptions,  that  the  decree  may  have  rested  on  any 
of  the  other  defenses  asserted  by  the  husband.  Everett  v.  Everett, 
203. 

7.  FtUl  faith  and  credit  clause;  effect  of  judgment  concerning  land  sitriated 

beyond  jurisdiction  of  court  rendering  it. 
The  full  faith  and  credit  clause  of  the  Constitution  does  not  extend 
the  jurisdiction  of  the  courts  of  one  State  to  property  situated 
in  another  State,  but  only  makes  the  judgment  conclusive  on 
the  merits  of  the  claim  or  subject-matter  of  the  suit;  and  the 
courts  of  the  State  in  which  land  is  situated  do  not  deny  full  faith 


632  INDEX. 

and  credit  to  a  decree  of  courts  of  another  State,  or  to  a  master's 
deed  thereunder,  by  holding  that  it  does  not  operate  directly 
upon,  and  transfer  the  property.    Fall  v.  Eastin,  1. 

See  JUDOMENTB  AND  DECREES,  1. 

8.  Taxation;  state  interference  with  Federal  power  of,  by  imposing  re- 
quirements on  holders  of  Federal  liquor  licenses, 

A  state  statute  requiring  the  holder  of  a  Federal  license  to  sell  malt 
or  liquor  to  perform  duties  in  conflict  with  the  requirement  of 
the  Federal  statute  is  an  exercise  of  power  repugnant  to  the 
Constitution  and  cannot  be  enforced;  and  so  held  as  to  chap.  189, 
General  Laws  of  North  Dakota,  requiring  the  holder  of  such  a 
license  to  file  and  publish  a  copy  thereof.  Flaherty  v.  Hanson, 
515. 

CONSTRUCTION  OF  CONTRACTS. 
•  See  Banks  and  Banking,  3. 

CONSTRUCTION  OF  STATUTES. 
See  Statutes,  A. 

CONTRACT  LABOR. 

See  Criminal  Law,  2; 
Statutes,  A  4. 

CONTRACTS. 

1.  Impairment  of  obligation  by  withdrawal  of  power  of  taxaiUm  incident 

thereto. 
The  power  of  taxation  conferred  by  law  enters  into  the  obligation  of  a 
contract,  and  subsequent  legislation  withdrawing  or  lessening 
such  power  and  which  leaves  the  creditors  without  adequate 
means  of  satisfaction  impairs  the  obligation  of  their  contracts. 
Hubert  v.  New  Orleans,  170. 

2.  CorUiniumce  of  incident  of  taxation. 

A  power  to  tax  to  fulfill  contract  obligations  continues  until  the  obli- 
gation is  discharged.    lb, 

3.  Specific  performance  on  ground  of  part  performanee  only  where 

damages  inadequate  relief. 
In  order  that  specific  performance  may  be  decreed  on  the  ground  of 
part  performance  the  acts  done  and  relied  on  by  the  party  seek- 
ing relief  must  be  such  that  damages  would  not  be  adequate 
relief.     Haffner  v.  Dobrinski,  446. 


INDEX.  833 

4.  Specific  performance  on  ground  of  part  performance;  judicial  diecre- 

Hon.  in  decreeing. 
Specific  performance  rests  in  judicial  discretion  to  be  exercised  ac- 
cording to  settled  principles  of  equity  and  with  reference  to  the 
facts  in  the  particular  case,  and  it  may  be  refused  where,  as  in 
this  case,  the  conditions  do  not  appeal  to  equitable  consideration, 
even  in  case  of  part  performance.    lb, 

5.  Specific  performance  on  ground  of  part  performance;  tiufficiency  of 

grounds  for  refusal  to  decree. 
The  Supreme  Court  of  Oklahoma  did  not  err  in  refusing  to  decree 
specific  performance  in  a  case  where  complainant  had  funds  in 
his  possession  sufficient  to  cover  his  damages,  if  any,  and  where 
that  court  held  that  the  alleged  contract  was  unreasonable  in  its 
provisions,  lacked  mutuality,  and  the  part  performance  did  not 
take  the  contract  out  of  the  statute  of  frauds,    lb, 

6.  ConstructUm'of  decision  in  Lowrey  v.  Hawaii^  206  U,  S.  206. 

The  decision  and  opinion  of  this  court  in  Lowrey  v.  Hawaii,  206  U.  S. 
206,  construed  and  followed  as  to  construction  of  contract  in- 
volved and  liability  thereunder  of  the  Hawaiian  government. 
Lowrey  v.  Hawaii,  554. 

7.  Condition  to  teach  definite  Christian  doctrine;  how  not  satif^fi^d, 

A  condition  to  teach  a  definite  Christian  doctrine  is  not  satisfied  by 
teaching  merely  a  form  of  general  evangelical  Christianity.    76. 

» 

8.  Breach  of  covenant — Election;  right  of,  where  alternative  obligation — 

Running  of  statute  of  limitations. 
Where  the  breacfh  of  a  covenant  of  use  entails  either  forfeiture  or 
payment  of  a  specified  sum,  the  grantee  has  the  right  of  election 
until  disavowal  on  his  part  and  denial  of  the  alternative  obliga- 
tion, and  until  then,  notwithstanding  a  continuous  breach,  the 
statute  of  limitations  does  not  run  against  the  grantor.    lb, 

9.  In  this  case  the  judgment  of  the  Supreme  Court  of  the  Territory  of 

Oklahoma,  involving  contract  rights,  is  affirmed.    Snyder  v.  Rosen^ 
bourn,  261. 

See  Banks  and  Bankinq,  2;  Cobporations,  1-6; 

Constitutional  Law,  1-5;       Equity,  6. 

CONTRIBUTION. 
See  Parties,  1. 


634  INDEX. 

CONVEYANCES. 

Deed  of  trust;  effect  to  convey  alternative  Mxffoiikm  to  tvkich  granior 

entitled. 
A  deed  of  trust  conve3rmg  all  lands  of  grantor  or  in  which  it  has  any 
interest  held  in  this  caae  to  include  its  right  to  a  liquidated  sum 
in  lieu  of  right  of  re^try  for  a  breach  of  covenant  of  use  of  lands 
theretofore  conveyed  by  it.     Lowrey  v.  Hawaii,  564. 
See  Constitutional  Law,  7;        Equity,  2, 3,  5,  6,  7; 

Courts,  10,  11 ;  Judgments  and  Dbcbebs,  2, 3. 

COPYRIGHTS. 

1.  StatvJtory  and  common-law  rights  distinguished. 

Statutory  cop3rright  is  not  to  be  confounded  with  the  exclusive  prop- 
erty of  the  author  in  his  manuscript  at  common  law.  Caliga  v. 
Inter  Ocean  Newspaper  Co,,  182. 

2.  Statutory  copyright  a  new  right. 

In  enacting  the  cop3rright  statute  Congress  did  not  sanction  an  exist- 
ing right  but  created  a  new  one  dependent  on  compliance  with 
the  statute.    lb. 

3.  Applications;  amendments — Validity  of  copyright  granted  on  second 

application. 
Under  existing  copyright  law  of  the  United  States  there  is  no  pro- 
vision for  filing  amendments  to  the  first  applitsation;  and,  the 
matter  being  wholly  subject  to  statutory  regulation,  copyright 
on  a  second  application  cannot  be  sustained.    lb. 

4.  Limitation;  extension  of. 

The  statutory  limit  of  copyright  cannot  be  extended  by  new  app^ci^ 
tions.    lb. 

CORPORATIONS. 

1.  Duration;  effect  affranchise  granted  subsequent  to  act  of  incorporation 
to  extend  life  of  charter. 

Where  the  corporate  existence  has  been  recogniied  after  the  expiration 
of  the  shorter  period  and  the  State  has  not  moved  in  quo  warranto, 
a  franchise  legally  granted  by  municipal  ordinance  and  legislative 
enactment  for  the  life  of  the  charter  of  a  public  service  corporar 
tion  cannot  be  impaired  during  the  term  specified  in  the  charter 
filed  before  the  grant  was  made,  although  such  term  be  longer 
than  that  allowed  by  the  act  under  which  the  corporation  was  or- 
ganized.    Minneapolis  v.  Street  Railway  Co.,  417. 


INDEX.  635 

2.  Frcnchise  contract;  effect  of  end  of  corporate  life, 

A  franchise  contract  may  extend  beyond  the  life  of  the  corporation 
to  which  it  is  granted;  at  the  end  of  the  corporate  life  it  is  a 
divisible  asset.    Ih. 

3.  Franchises;  effect  of  waiver  of  privileges  under,  on  constitutional 

protection. 
Waiver  to  a  reasonable  extent  of  certain  privileges  under  a  franchise 
does  not  withdraw  the  other  privileges  from  the  protection  of  the 
contract  clause  of  the  Constitution.     lb, 

4.  Public  service;  limitation  of  franchises. 

Franchises  to  public  service  corporations  will  not  be  extended  by 
implication,  but  whatever  is  plainly  and  legally  granted  is  pro- 
tected by  the  contract  clause  of  the  Constitution.    Ih, 

5.  Instrumentalities  of;  effect  of  change  of  motive  power  on  contract  rights 

of  public  service  corporation. 
An  ordinance  enacted  before  electricity  was  used  as  motive  power 
prohibiting  any  power  that  would  be  a  public  nuisance  will  not  be 
construed  as  excluding  electricity;  and  a  public  service  corporar 
tion  accepting  an  ordinance  permitting  change  from  horse  to 
electric  power  does  not  abandon  its  rights  under  the  original 
ordinance  so  that  they  are  no  longer  protected  by  the  contract 
clause  of  the  Constitution.    lb, 

6.  Stockholder's  right  as  to  procedure  for  enforcement  of  liability — Power 

of  State  to  regulate  procedure. 
In  becoming  a  stockholder  of  a  corporation  one  does  not  acquire  as 
against  the  State  a  vested  right  in  any  particular  mode  of  pro- 
cedure for  enforcement  of  liability,  but  it  is  assumed  that  parties 
make  their  contracts  with  reference  to  the  existence  of  the  power 
in  the  State  to  regulate  such  procedure.  Henley  v.  Myers,  373. 
iSeeCoNSTiTunoNALLAW,  2,  3,  5;        Process; 

Practice  and  Procedure,  13;        Removal  of  CaubbBi  8; 

Statutes,  A  5,  7 

COURTS. 

1.  Federal;  equity  jurisdiction  and  whence  derived;  restraint  by  state 
legidation. 

The  equity  jurisdiction  of  the  Federal  courts  is  derived  from  the 
Federal  Constitution  and  statutes  and  is  like  unto  that  of  the 
High  Court  of  Chancery  in  England  at  the  time  of  the  adoption 
of  the  Judiciary  Act  of  1789;  it  is  not  subject  to  limitations  or 


636  INDEX. 

restraints  by  state  legislation  giving  jurisdiction  to  state  courts 
over  similar  matters.     Waterman  v.  Canal^Lauisiana  Bank  Co.,  33. 

2.  Federal;  equity  jvrisdiction  to  establish  claims  of  and  have  eaceeution 

of  trust  as  to  creditors,  legatees  and  heirs  of  decedent. 
While  Federal  courts  cannot  seize  and  control  property  which  is  in  the 
possession  of  the  state  courts  and  have  no  jurisdiction  of  a  purely 
probate  character,  they  can,  as  courts  of  chancery,  exerciae  juris- 
diction, where  proper  diversity  of  citizenship  exists,  in  favor  of 
creditors,  legatees,  and  heirs,  to  establish  their  claims  and  have  a 
proper  execution  of  the  trust  as  to  them.    lb, 

3.  Federal;  equity  jurisdiction  of— Possess  no  probate  juriadictum. 
Although  complainant  in  this  case  asks  in  some  of  her  prayers  for 

relief  which  is  beyond  the  jurisdiction  of  the  court  as  being  of  a 
purely  probate  character  if  the  allegations  of  the  bill  support 
them  the  court  may  grant  other  prayers  for  relief  which  are 
within  its  jurisdiction,  and,  as  a  coiut  of  equity,  shape  its  decree 
according  to  the  equity  of  the  case.    Ih, 

4.  Federal;  jurisdiction  to  determine  interests  of  parties  in  estate  of 

decedent;  binding  effect  of  decree. 
Where  the  bill  does  not  seek  to  set  aside  the  probate  of  a  will  or  inter- 
fere with  the  possession  of  the  probate  court,  the  Federal  court 
of  equity,  in  a  case  where  diverse  citizenship  exists,  may  deter- 
mine as  between  the  parties  before  the  court  their  interests  in 
the  estate  and  such  decree  will  be  binding  upon,  and  may  be 
enforced  against,  the  executor.    lb. 

5.  Federal;  respect  of  decree  of  by  state  court,  assumed — Federal  question 

presented  by  failure  to  so  respect. 
It  will  be  assumed  that  the  state  probate  court  will  respect  the  decree 
of  the  Federal  court  having  jurisdiction  settling  the  rights  of 
parties  in  an  estate,  and  the  denial  of  effect  of  such  a  decree 
presents  a  claim  of  Federal  right  which  can  be  protected  by  this 
court.    76. 

6.  Federal;  equity  jurisdiction;  effect  of  absence  of  parties. 

While  a  Federal  court  of  equity  cannot,  either  under  the  forty-sevoith 
rule  in  equity  or  general  principles  of  equity,  proceed  to  adjudica- 
tion in  the  absence  of  indispensable  parties,  if  it  can  do  justice 
to  the  parties  before  it  without  injury  to  absent  persons  it  will 
do  so  and  shape  the  decree  so  as  to  preserve  the  rights  of  those 
actually  before  the  court,  without  prejudice  to  the  ri^ts  of  the 
absentees.    lb. 


INDEX.  637 

7.  Federal;  equity  jurisdiciion;  effect  of  absence  of  parties. 

In  this  case  the  absent  party  was  not  of  the  same  State  as  complainant 
and  had  no  interest  in  common  with  complainant  and  while  a 
proper,  was  not  an  mdispensable  party,  as  his  mterests  were 
separate  and  could  be  protected  by  retention  of  his  legacy  by  the 
executors  subject  to  adjudication  in  another  suit.    76. 


Federal  and  state;  when  decisions  of  latter  courts  binding  upon  former. 
Rules  of  law  relating  to  real  estate,  so  established  by  state  decisions 
rendered  before  the  rights  of  the  parties  accrued,  as  to  have  be- 
come rules  of  property  and  action,  are  accepted  by  the  Federal 
court;  but  where  the  law  has  not  thus  been  settled  it  is  the  right 
and  duty  of  the  Federal  court  to  exercise  its  own  judgment,  as  it 
alwa3rs  does  in  cases  depending  on  doctrines  of  commercial  law 
and  general  jurisprudence.    Kuhn  v.  Fairmont  Coal  Co,,  349. 

9.  Federal  and  state;  comity, 

Cven  in  questions  in  which  the  Federal  court  exercises  its  own  judg- 
ment, the  Federal  covat  should,  for  the  sake  of  comity  and  to 
avoid  confusion,  lean  to  agreement  with  the  state  court  if  the 
question  is  balanced  with  doubt.    76. 

10.  Federal  and  state;  when  former  should  exercise  independent  judg- 
ment on  questions  concerning  real  estate. 

When  determining  the  effect  of  conveyances  or  written  instruments 
between  private  parties,  citizens  of  different  States,  it  is  the  right 
and  duty  of  the  Federal  court  to  exercise  its  own  independent 
judgment  where  no  authoritative  state  decision  had  been  ren- 
dered by  the  state  court  before  the  rights  of  the  parties  had  ac- 
crued and  become  final.    Ih. 

11.  Federal  and  state;  when  former  not  bound  by  decision  of  latter  in 
construction  of  deed  of  real  estate. 

The  Federal  court  is  not  bound  by  a  decision  of  the  state  court,  ren- 
dered after  the  deed  involved  in  the  case  in  the  Federal  court  was 
made  and  after  the  injury  was  sustained,  holding  that  there  is  no 
imptied  reservation  in  a  deed  conveying  subsurface  coal  and  the 
right  to  mine  it  to  leave  enough  coal  to  support  the  surface  in  its 
original  position..    76. 

12.  Federal;  conclusiveness  of  state  decisions  and  statutes  on. 
Notwithstanding  the  conformity  act,   §  914,  Rev.  Stat.,  decisions 

and  statutes  of  States  are  not  conclusive  upon  the  Federal  courts 
in  determining  questions  of  jurisdiction.  Mechanical  Appliance 
Co.  v.  Castleman,  437. 


638  INDEX. 

13.  Conflict  vnth  Interstate  Commerce  Commission — Paramount  power 
of  commission  in  respect  of  regulation  of  interstate  commerce. 

Regulations  which  are  primarily  within  the  competency  of  the  Inter- 
state Commerce  Commission  are  not  subject  to  judicial  super- 
vision or  enforcement  until  that  body  has  been  properly  afforded 
an  opportunity  to  exert  its  administrative  functions.  Texas  dt 
Pacific  RaUway  Co.  v.  Abilene  Cotton  OH  Co,,  204  U.  S.  426,  ap- 
plied, and  Southern  Railway  Co.  v.  Tift,  206  U.  S.  428,  distin- 
guished.   BaUo,  <k  Ohio  R.  R,  Co.  v.  Pitcaim  Coal  Co.,  481. 

14.  Interference  in  matters  within  competency  of  Interstate  Commerce 
Commission — Regulation  of  distribution  of  coal  cars. 

The  distribution  to  shippers  of  coal  cars  including  those  owned  by 
the  shippers  and  those  used  by  the  carrier  for  its  own  fuel  is  a 
matter  involving  preference  and  discrimination  and  within  the 
competency  of  the  Interstate  Commerce  Commission,  and  the 
courts  cannot  interfere  with  regulations  in  regard  to  such  die- 
tribution  until  after  action  thereon  by  the  conmiission.    76. 

15.  Limitations  on,  under  court  review  provisions  of  i  15  of  act  to  regulate 
commerce  as  amended  in  1906. 

Under  the  court  review  provisions  of  §  15  of  the  act  to  regulate  com- 
merce as  amended  in  1906,  the  courts  are  Umited  to  the  question 
of  power  of  the  commission  to  make  the  order  and  cannot  con- 
sider the  wisdom  or  expediency  of  the  order  itself.  (Inierslate 
Commerce  Commission  v.  Illinois  Central  Railroad,  ante,  p.  452.) 
Ih, 
See  Constitutional  Law,  6;  Jurisdiction; 

Customs  Law,  2;  Philippine  Islands,  4; 

Interstate  Commerce  Com-        Practice  and  Proceduek; 
mission,  1 ;  Removal  of  Causes; 

Statutes,  A  12. 

CRIMINAL  APPEALS  ACT. 
See  Jurisdiction,  A  1,  2. 

CRIMINAL  LAW. 

1 .  Right  of  defendant  as  to  production  of  untnesses  against  him — Direction 
of  verdict  against  accused. 

When  the  Government  prosecutes  by  indictment  for  a  penalty  that  it 
might  sue  for  in  a  civil  action  the  person  proceeded  against  is 
entitled  to  all  constitutional  protection  as  to  production  of 
witnesses  against  him  and  a  verdict  cannot  be  directed  against 
him  as  might  be  the  case  in  a  civil  action.  United  States  v.  Steven- 
son, 190. 


INDEX.  639 

2.  Conspiracy  to  commit  offenae  against  United  States  wiihin  meaning 

of  1 5440,  Rev.  Stat. 
Where  CongieBS  has  made  aa  act  a  crime  and  indictable  it  follows  that 
if  two  or  more  conspire  to  commit  the  act  they  conspire  to  com- 
mit an  offense  against  the  United  States  within  the  meaning  of 
I  5440,  Rev.  Stat. ;  and  so  held  in  regard  to  conspiring  to  assist 
immigration  of  contract  laborers  in  violation  of  §  4  of  the  Im- 
migration Act  of  February  20, 1907,  c.  1134, 34  Stat.  898.  United 
States  V.  Stevenson  (No.  2),  200. 

3.  Intent;  how  charged;  when  its  existence  is  and  is  not  question  for  jury. 
Where  intent  is  an  essential  ingredient  of  a  crime  it  may  be  charged 

in  general  terms  and  its  existence  becomes  a  question  for  the  jury, 
excepting  only  where  the  criminal  intent  could  not  as  a  matter 
of  law  have  existed  under  any  possible  circumstances.  United 
States  V.  CorbeU,  233. 

4.  Initrd  to  injure  national  hank  as  incident  of  offense  defined  by  §  5209, 

Rev.  Stat. 
Under  Rev.  Stat.,  §  5209,  false  entries  as  to  the  condition  of  a  national 
bank  may  be  made  with  intent  to  injure  the  bank  even  though 
they  show  the  bank  to  be  in  a  more  favorable  condition  than  it 
actually  is,  and  the  question  of  intent  to  injure  is  one  for  the 
jury.    lb. 

See  Congress,  Powers  of,  1 ;        Extradition  ; 
Customs  Law,  1;  Indians,  2,  3,  5; 

Statutes,  A  2-7,  9. 

CUSTOMS  LAW. 

1.  Administrative  act  of  1890  construed — Weigher  within  provisions  of 

§9. 
Under  §  9  of  the  Customs  Administrative  Act  of  June  10,  1890,  c.  407, 
26  Stat.  131,  135,  providing  punishment  for  making  and  aiding 
in  false  entries,  the  words  "owner,  importer,  consignee,  agent 
or  other  person"  include  a  weigher  representing  the  Government, 
and  his  acts  come  within  the  letter  and  purpose  of  the  statute. 
United  States  v.  Meacall,  26. 

2.  DepartrnerUal  conUruction  entitled  to  great  ujeight — Similitude  dassifi- 

caJbion  of  sake. 
The  construction  given  by  the  Department  charged  with  executing 
a  tariff  act  is  entitled  to  great  weight;  and  where  for  a  number 
of  years  a  manufactured  article  has  been  classified  under  the 
similitude  section  this  court  will  lean  in  the  same  direction;  and 


640  INDEX. 

80  held  that  the  Japanese  beverage,  sake,  is  properly  dutiable 
under  §  297  of  the  tariff  act  of  July  24,  1897,  c.  11,  30  Stat.  151, 
205,  as  similar  to  still  wine  and  not  as  similar  to  beer.  Kamada 
V.  United  States,  392. 

3.  DeparimenUd  daseificatian  of  artide;  effect  an,  of  subsequent  legisUh 
tion  of  Congress. 

After  a  departmental  classification  of  an  article  under  the  similitude 
section  of  a  tariff  law,  the  reenactment,  by  Congress,  of  a  tariff 
law  without  specially  classifying  that  article  may  be  r^|;arded 
as  a  qualified  approval  by  Congress  of  such  classification.    lb. 

DAMAGES. 

See  Contracts,  3,  5; 
Equity,  4. 

DECREES. 
See  Judgments  and  Decrees. 

DEEDS. 

iSee  Conveyances;  Courts,  10,  11; 

Constitutional  Law,        Equity,  2, 3,  5,  6,  7; 

7;  Judgments  and  Decrees,  2,  3. 

DEEDS  OF  TRUST. 
See  Conveyances. 

DEFENSES. 
See  Mandamus,  2. 

DEPARTMENTAL  CONSTRUCTION. 
See  Customs  Law,  2,  3. 

DIRECTED  VERDICT. 
See  Criminal  Law,  1. 

DISTINGUISHED  CASES. 
See  Cases  Distinguished. 

DISTRICT  OF  COLUMBIA. 

iSee  Employers'  Liability  Act; 
Statutes,  A  8; 
Territories,  1. 


INDEX.  641 

DIVERSITY  OF  CITIZENSHIP. 
See  Removal  of  Causes. 

DRY-DOCKS. 
See  Admiralty. 

DUE  PROCESS  OF  LAW. 
See  Constitutional  Law,  4,  5. 

DURESS. 

See  Instructions  to  Jury; 
Local  Law  (Okla.). 

EJUSDEM  GENERIS. 
See  Statutes,  AIL 

ELECTION. 
See  Contracts,  8. 

EMPLOYERS'  LIABILITY  ACT. 

1.  Effect  of  decision  in  207  U.  S.  at  p,  463  on  validity  as  to  District  of 

Columbia  and  Territories. 
This  court  did  not  in  its  decision  of  the  Employer^  Liability  Causes, 
207  U.  S.  463,  hold  the  act  of  June  11,  1906,  c.  3073,  34  Stat. 
232,  unconstitutional  so  far  as  it  related  to  the  District  of  Columbia 
and  the  Territories,  and  expressly  refused  to  interpret  the  act  as 
applying  only  to  such  employ^  of  carriers  in  the  District  and 
Territories  as  were  engaged  in  interstate  commerce.  El  Pa^  & 
Ncrthecutem  Ry.  Co,  v.  Gviierrez,  87. 

2.  Intent  of  Congress  as  respects  District  of  Columbia  and  Territories 

— Act  constitutional  when  applied  to  District  and  Territories. 
The  evident  intent  of  Congress  in  enacting  the  Employers'  Liability 
Act  of  June  11,  1906,  was  to  enact  the  curative  provisions  of  the 
law  as  applicable  to  the  District  of  Columbia  and  the  Territories 
under  its  plenary  power  irrespective  of  the  interstate  commerce 
feature  of  the  act,  and  although  unconstitutional  as  to  the  latter 
as  held  in  207  U.  S.  463,  it  is  constitutional  and  paramount  as  to 
commerce  wholly  in  the  District  and  Territories.    Ih. 

3.  Effect  to  supersede  prior  territorial  legislation. 

The  Employers'  Liability  Act  of  June  11,  1906,  being  a  constitutional 
regulation  of  commerce  in  the  District  of  Columbia  and  the 

VOL.  ccxv — 41 


642  INDEX. 

Territories  necessarily  supersedes  prior  territorial  legislation  on 
the  same  subject  and  non-compliance  by  the  plaintiff  employ^ 
with  a  provision  of  a  territorial  statute  (in  this  case  of  New 
Mexico)  cannot  be  pleaded  by  the  defendant  employer  as  a  bar 
to  an  action  for  personal  injuries.    lb, 

ENTRYMEN. 
See  PuBuc  Lands,  2. 

EQUITY. 

1.  Interference  by  injunction  to  enforce  policy  of  State  as  to  conaervation 

of  natural  resources. 
Where  the  remedy  at  law  is  of  doubtful  adequacy  and  the  policy  of 
the  State  is  clearly  indicated  for  the  protection  of  an  important 
industry,  equity  may  interfere,  although  under  different  circum- 
stances an  injunction  might  be  denied;  and  so  held  as  to  an  in- 
junction against  cutting  or  boxing  timber  on  pine  lands  in  Georgia. 
Graves  v.  Ashbum,  331. 

2.  Of  suit  to  remove  doud  on  tUle  to  land  in  absence  of  allegation  of 

possession. 
Possession  of  unenclosed  woodland  in  natural  condition  is  a  fiction 
of  law  rather  than  a  possible  fact,  and  can  reasonably  be  assumed 
to  follow  the  title;  and,  in  this  case,  held  that  a  suit  in  equity 
could  be  maintained  to  remove  cloud  on  title  and  cancel  a  fraudu- 
lent deed  of  timber  lands  in  Georgia  notwithstancting  there  was 
no  allegation  of  possession.    lb. 

3.  Jurisdiction  of  suit  to  caned  deed  valid  on  its  face, 

A  suit  in  equity  may  be  maintained  to  cancel  a  deed  improperly  given 
where  the  invalidity  does  not  appear  on  its  face,  and  under 
which  by  the  state  law,  as  in  Georgia,  possession  might  give  a 
title.    lb. 

4.  Jurisdiction  of  suit  to  caned  deed;  effect  of  commission  of  wade  by 

defendant. 
The  fact  that  the  defendant  has,  during  the  pendency  of  an  equity 
action  to  set  aside  a  deed,  continued  to  waste  the  property  does 
not  destroy  the  jurisdiction  of  the  court;  the  bill  may  be  retained 
and  damages  assessed.    lb, 

5.  Reformation  of  instruments;  scope  of  inquiry. 

In  a  suit  in  equity  to  have  a  deed  declared  a  mortgage  and  in  which 
fraud,  oppression  and  undue  influence  are  chsurged,  the  court  is 


INDEX.  643 

not  concluded  by  what  appears  on  the  face  of  the  papers  but  may 
inquire  into  the  real  facts  of  the  transactions.  (Russell  v.  Southard, 
12  How.  139.)     Wagg  v.  HerbeH,  546. 

6.  Reformation  of  instruments;  effect  on  status  of  parties. 

A  court  of  equity  may  decree  that  a  deed  given  in  settlement  of  a 
mortgage  debt,  no  new  consideration  moving,  was,  by  reason 
of  fraud,  oppression  and  undue  influence,  merely  a  new  mort- 
gage, and  by  such  decree  no  new  contract  is  created  by  the  court, 
and  the  relation  of  mortgagor  and  mortgagee  originally  existing 
is  not  disturbed.    Ih, 

7.  Laches  barring  recovery;  analogy  to  statute  of  limitations. 
Though  laches  may  be  the  equitable  equivalent  of  the  legal  statute  of 

limitations,  there  is  no  fixed  time  that  makes  it  a  bar,  and  in  this 
case  a  delay  of  a  little  over  two  years  (the  statutory  period)  in 
bringing  an  action  to  have  a  deed  declared  an  equitable  mort- 
gage did  not  amount  to  laches.    Ih, 

8.  Specific  enforcement  of  right  to  apply  for  patent  to  lands. 

A  right  to  an  instrument  that  will  confer  a  title  in  a  thing  is  a  right  to 
the  thing  itself,  and  a  statutory  right  to  apply  for  a  patent  to 
mining  lands  is  a  right  that  equity  will  specifically  enforce. 
Reavis  v.  Fiama,  16. 

See  CoNTBACTS,  3,  4,  5;       Judgments  and  Dbcrbes,  1,  2; 
CJouBTSy  1-5;  Pleading,  1. 

EQUIVALENTS. 
See  Patents,  3. 

ESTATES  OF  DECEDENTS. 
See  Courts,  2-7. 

ESTOPPEL. 
See  Constitutional  Law,  6. 

EVIDENCE. 

See  Constitutional  Law,  6;       Philippine  Islands,  4; 

Extradition;  Practice  and  Procedure,  12; 

Intoxicating  Liquors;  Removal  of  Causes,  7. 

EXECUTIVE  FUNCTIONS. 
See  Extradition,  1,  2. 


644  INDEX. 

EXECUTORS  AND  ADMINISTRATORS. 
See  Ck>UBTB,  4,  7. 

EXPLAINED  CASES. 
See  Cases  Explained. 

EXTRADITION. 

1.  Rigkla  of  accueed — Not  entiUed  to  notice  of  executive  coruideraium  of 

requisition. 
The  executive  of  a  State  upon  whom  a  demand  is  made  for  the  surren- 
der of  a  fugitive  from  justice  may  act  on  the  papers  in  the  absence 
of,  and  without  notice  to,  the  accused,  and  it  is  for  that  executive 
to  determine  whether  he  will  regard  the  requisition  papers  as 
sufficient  proof  that  the  accused  has  been  charged  with  crime  in, 
and  is  a  fugitive  from  justice  from,  the  demanding  State,  or 
whether  he  will  demand,  as  he  may  if  he  sees  fit  so  to  do,  further 
proof  in  regard  to  such  facts.    Marbles  v.  Creecy,  63. 

2.  Surrender  of  fugitive;  effect  on  legality ,  of  notice  in  requisition  thai 

demanding  State  not  responsible  for  expenses  of  extradition. 
A  notice  in  the  requisition  papers  that  the  demanding  State  will  not 
be  responsible  for  any  expenses  attending  the  arrest  and  delivery 
of  the  fugitive  does  not  affect  the  legality  of  the  surrender  so  far 
9s  the  rights  of  the  accused  under  the  Constitution  and  laws  of 
the  United  States  are  concerned.    lb. 

3.  Considerations  not  affecting  judgment  of  executive  of  surrendering 

State. 
The  executive  of  the  surrendering  State  need  not  be  controlled  in  the 
discharge  of  his  duty  by  considerations  of  race  or  color,  or,  in 
the  absence  of  proof,  by  suggestions  that  the  alleged  fugitive  will 
not  be  fairly  dealt  with  by  the  demanding  State.    lb. 

4.  Requisition;  assumption  of  fairness  and  good  faith  in  making. 

On  habeas  corpus  the  court  can  assume  that  a  requisition  made  by  an 
executive  of  a  State  is  solely  for  the  purpose  of  enforcing  its 
laws  and  that  the  person  surrendered  will  be  legally  tried  and 
adequately  protected  from  illegal  violence.    lb. 

5.  Foreign;  sufficiency  of  complaint. 

In  foreign  extradition  proceedings  the  complaint  is  sufficient  to  au- 
thorize the  commissioner  to  act  if  it  so  clearly  and  explidtly 
states  a  treaty  crime  that  the  accused  knows  exactly  what  the 
charge  is;  nor  need  the  record  and  depositions  from  the  demand- 


INDEX.  645 

ing  country  be  actually  fastened  to  the  complaint.  Yordi  v. 
Nolle,  227. 

6.  Foreign — Hearing  before  commissioner;  admissibUiiy  of  deposUiona, 
In  this  case  held  that  depositions  in  the  possession  of  the  officer  of 

the  demanding  country  making  the  complaint,  which  showed 
actual  grounds  for  the  prosecution  and  of  which  the  commis- 
sioner had  knowledge,  from  their  use  in  a  former  proceeding, 
were  admissible  on  the  hearing  before  the  commissioner  and 
were  also  admissible  for  the  purpose  of  vesting  jurisdiction  in 
him  to  issue  the  warrant.    Ih. 

7.  Foreign;  sufficiency  of  evidence  to  establish  extraditable  crime  of 

forgery  under  treaty  with  Mexico,  for  purpose  of  holding  accused 
for  extradition. 
In  this  case  this  court,  reviewing  the  evidence,  reverses  the  territorial 
court  and  finds  that  there  is  evidence  to  show,  with  sufficient 
certainty,  that  an  extraditable  crime  was  committed  by  the 
person  benefited  thereby,  and  thus  to  satisfy  the  extradition 
procedure  statute  and  justify  the  order  of  the  commissioner 
conunitting  the  accused  to  await  the  action  of  the  Executive 
Department  on  a  requisition  made  for  forgery  under  the  treaty 
of with  Mexico.    Elias  v.  Ramirez,  398. 

8.  Foreign;  admissibility  of  evidence  before  commissioner. 
Although  the  statements  of  certain  witnesses  were  unsworn  to  and 

therefore  might  not,  under  the  state  law,  be  admissible  before  a 
conunitting  magistrate,  under  the  extradition  statute  they  are 
receivable  by  the  commissioner  to  create  a  probability  of  the 
commission  of  the  crime  by  the  accused.    lb, 

FACTS. 

See  Practice  and  Procbdurb,  6,  10,  12; 
Removal  of  Causes,  5. 

FALSE  ENTRIES. 
See  Statutes,  A  2. 

FEDERAL  QUESTION. 

Absence  of  Federal  question  in  case  involving  title  derived  under  Federal 
authority,  where  decision  based  on  general  law. 

The  determination  by  a  state  court  that  a  purchaser  pendente  lite  from 
the  trustee  of  a  bankrupt  is  bound  by  the  decree  against  the 
trustee  in  the  action  of  which  he  has  notice  gives  effect  to  such 


646  INDEX. 

decree  under  the  principles  of  general  law;  and  if ,  as  in  this  case, 
it  does  not  involve  passing  on  the  nature  and  character  of  the 
rights  of  the  parties  arising  from  the  transaction  of  purchase  and 
sale,  no  Federal  question  is  involved.    Kenpey  v.  Craven,  125. 
See  JuBisDicnoN ; 

Practice  and  Pbocbdubb,  15. 

FIRE  DAMAGE. 
See  Admjrauty,  1. 

FOLLOWED  CASES. 
See  Cases  Followed. 

FOREIGN  CORPORATIONS. 
See  Process. 

FOREIGN  EXTRADITION. 
See  EXTRADITION;  5-8. 

FORGERY. 
See  Extradition,  7. 

FRANCHISES. 

Delay  in  campUHng  work  under  statutory  penmaeion;  effect  of  injundum 
as  excuse. 

The  fact  that  for  a  time  work  was  enjoined  at  the  instapoe  of  the 
Government  does  not  excuse  the  delay  in  completing  work  under 
statutory  permission  within  the  time  prescribed  where  the  delay 
exceeds  the  limit  after  deducting  all  the  time  for  which  the  in- 
junction was  in  force.  Rio  Grande  Dam  Ac,  Co,  v.  United  States, 
266. 

See  Constitutional  Law,  6; 
Corporations,  1-4. 

FRAUD. 
See  Removal  of  Causes,  3,  4. 

FRAUDULENT  CONVEYANCES. 
See  Equity,  2-^. 

FUGITIVE  FROM  JUSTICE. 
See  Extradition,  1-3. 


INDEX.  647 

FULL  FAITH  AND  CREDIT. 

jSce  Constitutional  Law,  6,  7; 
Judgments  and  Decbxbs,  1. 

GRANTS. 
SeeJjASD  Grants; 

PuBuc  Lands,  3,  4,  5. 

HABEAS  CORPUS. 
See  Extradition,  4. 

HAWAII. 

See  Contracts,  6. 

HEPBURN  ACT. 
See  Commerce,  4. 

HOMESTEADS. 
See  Public  Lands,  2, 4. 

HUSBAND  AND  WIFE. 
See  Constitutional  Law,  6. 

IGNORANCE  OF  LAW. 
See  Land  Grants,  2. 

IMMIGRATION. 

See  Criminal  Law,  2; 
Statutes,  A  4. 

IMPAIRMENT  OF  CONTRACT  OBLIGATION. 

See  Constitutional  Law,  2,  3,  4; 
Contracts,  1; 
Corporations,  I. 

IMPERTINENT  MATTER. 
See  Practice  and  Procedure,  18. 

IMPORTS. 
See  Customs  Duties,  2,  3. 

INDIANS. 

L  Choctaw — Effect  of  patent  issued  in  jmrsuance  of  Treaty  of  Dancing 

Rabbit  Creek  of  September  27,  1830— Individual  rights. 
The  grant  in  letters  patent,  issued  in  pursuance  of  the  treaty  of  Dancing 


648  INDEX. 

Rabbit  Creek  of  September  27,  1830,  7  Stat.  333,  conveying  the 
tract  described  to  the  Choctaw  Indians  in  fee  simple  to  them  and 
their  descendants  to  inure  to  them  while  they  should  exist  as  a 
nation  and  live  thereon,  was  a  grant  to  the  Choctaw  Nation,  to 
be  administered  by  it  as  such;  it  did  not  create  a  trust  for  the 
individuals  then  comprising  the  nation  and  their  respective 
descendants  in  whom  as  tenants  in  common  the  legal  title  would 
merge  with  the  equitable  title  on  dissolution  of  the  nation.  Flem- 
ing V.  McCurtain,  56. 

2.  AUoUee;  jurisdiction  of  United  States  over. 

Although  an  Indian  may  be  made  a*  citizen  of  the  United  States 
and  of  the  State  in  which  the  reservation  for  bis  tribe  is  located, 
the  United  States  may  still  retain  jurisdiction  over  him  for 
offenses  committed  within  the  Hmits  of  the  reservation;  and 
so  held  as  to  a  crime  committed  by  an  Indian  against  another 
Indian  on  the  Tulalip  Indian  Reservation  in  Washington,  not- 
withstanding the  Indians  had  received  allotments  under  the 
treaties  with  the  Omahas  of  March  16,  1834,  and  of  Point  EHliott 
of  January  22,  1835.  Matter  of  Heffy  197  U.  S.  488,  distinguished, 
the  Indian  in  that  case  being  an  allottee  under  the  general  allot- 
ment act  of  February  8,  1887,  c.  119,  24  Stat.  388.  United  States 
V.  Cdestine,  278. 

3.  Jurisdiction  of  United  States  over — Interest  of  Indians  considered  in 

construction  of  Federal  statutes. 
Legislation  of  Congress  is  to  be  construed  in  the  interest  of  the  Indians; 
and,  in  the  absence  of  a  subjection  in  terms  of  the  individual 
Indian  to  state  laws  and  denial  of  further  jurisdiction  over  him 
by  the  United  States,  a  statute  wUl  not  be  construed  as  a  re- 
nunciation of  jurisdiction  by  the  United  States  of  crimes  com- 
mitted by  Indians  against  Indians  on  Indian  reservations.    76. 

4.  Citizenship;  suggestion  by  Congress  in  act  of  May  8,  1906. 

The  act  of  May  8,  1906,  c.  2348,  34  Stat.  182,  extending  the  trust 
period  of  allottees  under  the  act  of  1887,  suggests  that  Congress 
beheved  it  had  been  hasty  in  its  prior  action  in  granting  dtixen- 
ship  to  Indians.    Ih. 

5.  Jurisdiction  over  offenses  committed  on  reservatums. 

United  States  v.  Celestine,  ante,  p.  278,  followed,  as  to  continuance 
of  jurisdiction  of  United  States  over  offenses  conmiitted  within 
the  limits  of  an  Indian  reservation.     United  States  v.  Sutton,  291. 

6.  IrUroduction  of  liquor  in  Indian  country;  power  of  Congress  to  pro^ 

hUnt  and  punish. 
The  Indians,  as  wards  of  the  Government,  are  the  benefidaries  of 


INDEX.  649 

the  prohibition  against  the  introduction  of  liquor  into  Indian 
country;  and,  under  the  Washington  enabling  act,  jurisdiction 
and  control  over  Indian  lands  remains  in  the  United  States,  and 
Congress  has  power  to  prohibit  and  punish  the  introduction  of 
liquor  therein.    lb, 

7.  Reservations;  limits  not  affected  by  allotments  in  severalty. 

The  limits  of  an  Indian  reservation  are  not  changed  by  allotments 
in  severalty  during  the  trust  period,  and,  where  the  lands  allotted 
are  subject  to  restrictions  against  alienation  and  to  defeasance, 
the  prohibition  against  Hquor  continues  to  be  effective.    lb, 

INJUNCTION. 

See  Constitutional  Law,  5; 
Equity,  1; 
Franchiseb. 

INSOLVENCY. 
See  National  Banks. 

INSTRUCTIONS  TO  JURY. 

Omission  in  statutory  definition  of  duress  held  not  reversible  error. 

Stating  only  part  of  a  statutory  definition  of  duress  in  the  charge 
to  the  jury  held  not  reversible  error,  it  not  appearing  that  the 
defendant  was  hurt  thereby.    Snyder  v.  Rosenbaum,  261. 

INTENT  IN  CRIMINAL  LAW. 
See  Criminal  Law,  3,  4. 

INTERSTATE  COMMERCE. 

iSeeCoxTRTB,  13-15;  Interstate  Comhercb  Com- 

Emplo YBRs'  Liability  Act  ;  mission  ; 

Mandamus,  6,  7. 

INTERSTATE  COMMERCE  COMMISSION. 

1.  Order  of  Commission;  setting  aside;  power  to  make  and  not  wisdom 
the  test  of  validity. 

In  determining  whether  an  order  of  the  Interstate  Commerce  Com- 
mission shall  be  suspended  or  set  aside,  power  to  make — and  not 
the  wisdom  of — the  order  is  the  test  and  this  court  must  con- 
sider all  relevant  questions  of  constitutional  power  or  right,  all 
pertinent  questions  as  to  whether  the  administrative  order  is 
within  the  scope  of  the  delegated  authority  under  which  it  pur- 


650  INDEX. 

ports  to  be  made,  and  also  whether  even  if  m  form  it  is  within 
such  delegated  authority  it  is  not  so  in  substance  because  so 
arbitrary  and  unreasonable  as  to  render  it  invalid.  IrUentaU 
Cam,  Com.  v.  Illinois  Cent,  R,  Co.,  452. 

2.  Instruments  of  interstate  commerce  under  control  of. 

The  equipment  of  an  interstate  railroad,  including  cars  for  trans- 
portation of  its  own  fuel  are  instruments  of  interstate  oommeroe 
and  subject  to  control  of  the  Interstate  Commerce  Commis- 
sion,   lb. 

3.  Power  to  consider  question  of  distribiUion  of  coal  cars. 

The  act  to  regulate  commerce  has  delegated  to  the  Interstate  Com- 
merce Commission  authority  to  consider,  where  complaint  is 
made  on  that  subject,  the  question  of  distribution  of  coal  cars, 
including  the  carrier's  own  fuel  cars,  in  times  of  car  shortage, 
as  a  means  of  prohibiting  unjust  preference  or  undue  discrimina- 
tion.   75. 

4.  Power  to  make  arrangements  for  distribution  of  coal  cars  to  skippers. 
Interstate  Commerce  Commission  v.  lUinms  Central  Railroad  Company, 

ante,  p.  452,  followed  as  to  power  under  the  act  to  regulate  com- 
merce of  the  Commission  to  make  reasonable  arrangements  for 
the  distribution  of  coal  cars  to  shippers,  including  cars  for  trans- 
portation of  fuel  purchased  by  the  railroad  company  for  its  own 
use.    Interstate  Com.  Com.  v.  Chicago  &  Alton  R.  R.  Co.,  479. 

5.  Power  to  require  railroad  to  take  into  account  its  own  fuel  cars  in 

making  distribution. 
It  is  not  beyond  the  power  of  the  Interstate  Conunerce  Commission 
to  require  a  railroad  in  distributing  its  coal  cars  to  take  into 
account  its  own  fuel  cars  in  order  not  to  create  a  preference  of 
the  mine  to  which  such  cars  are  assigned  over  other  mines. 
Interstate  Com.  Com.  v.  Illinois  Cent.  R.  Co.,  452. 

6.  Power  to  deal  with  preferential  and  discriminatory  regulations  of 

carriers. 
Under  §  15  of  the  act  to  regulate  commerce  as  amended  June  29, 1906, 
c.  3591,  34  Stat.  585,  the  Interstate  Commerce  Conmussion  has 
power  to  deal  with  preferential  and  discriminatory  regulations 
of  carriers  as  well  as  with  rates.    Ih. 

7.  Inslrumentcdities  of  commerce  within  contrpl  of. 

Even  if  commerce  in  regard  to  the  purchase  of  coal  at  a  mine  on  a 
railroad  line  by  the  railroad  company  which  supplies  its  own 


INDEX,  651 

cars  may  end  there,  the  power  to  use  the  equipment  of  the  rail- 
road to  move  the  coal  is  subject  to  the  control  of  the  Interstate 
Commerce  Commission  in  order  to  prevent  discrimination  against, 
or  undue  preference  of,  other  miners  and  shippers  of  coal.    lb, 
iSee  Courts,  13-15; 

Practice  and  Procedure,  3,  7. 

INTERSTATE  RENDITION. 
See  Extradition,  1^. 

INTOXICATING  LIQUORS. 
Presuwption  as  to  dealing  in;  effect  of  payment  of  Federal  tax, 
QuujETe^  whether  the  payment  to  the  United  States  of  the  special  liquor 
tax  and  taking  a  receipt  therefor  creates  a  jirima  facie  presump- 
tion that  the  person  holding  the  receipt  is  engaged  in  the  liquor 
business.    Flaherty  v.  Hanson^  515. 

See  Constitutional  Law,  8; 
Indians,  6,  7. 

INVENTION. 
See  Patents. 

JOINDER  OF  PARTIES. 
See  Removal  of  Causes,  1^. 

JUDGIiiENTS  AND  DECREES. 

1 .  Efficacy  of  decree  for  conveyance  of  land  eituated  outmde  of  juriediction 

of  court. 
While  a  court  of  equity  acting  upon  the  person  of  the  defendant  may 
decree  a  conveyance  of  land  in  another  jurisdiction  and  enforce 
the  execution  of  the  decree  by  process  against  the  defendant, 
neither  the  decree,  nor  any  conveyance  under  it  except  by  the 
party  in  whom  title  is  vested,  Lb  of  any  efficacy  beyond  the  juris- 
diction of  the  court.  {CorbeU  v.  NuU,  10  Wall.  464.)  Fall  v. 
Eastin,  1. 

2.  Same. 

A  court  not  having  jurisdiction  of  the  res  cannot  affect  it  by  its  decree 
nor  by  a  deed  made  by  a  master  in  accordance  with  the  de- 
cree,   lb, 

3.  Application  of  local  legidation  as  to  effect  of  decree. 

Local  legislation  of  a  State  as  to  effect  of  a  decree,  or  a  conveyance 
made  by  a  master  pursuant  thereto,  on  the  res  does  not  apply 
to  the  operation  of  the  decree  on  property  situated  in  another 
State.    lb, 

4.  Res  judicata;  extent  of  application  of  rule. 

While  the  bar  of  a  judgment  in  another  action  for  the  same  claim  or 


652  INDEX. 

demand  between  the  same  parties  extends  to  not  only  what  was, 
but  what  might  have  been,  pleaded  or  litigated  in  the  fiist  ac- 
tion, if  the  second  action  is  upon  a  different  claim  or  demand  the 
bar  of  the  first  judgment  is  limited  to  that  which  was  actually 
litigated.     VirgimorCarolina  Chemical  Co,  v.  Kvrvenf  252. 

5.  Decree;  scope  shaiUd  he  limited  to  necessities  of  ccLse. 

Where  all  that  is  necessary  is  to  determine  whether  a  right  under  a 
state  charter  is  now  in  existence,  the  decree  should  be  confined 
thereto,  and  should  not  attempt  to  determine  the  further  dura- 
tion of  the  charter  under  state  statutes.  Minneapdis  v.  Street 
Railway  Co.,  417. 

6.  Privy  to  decree  establishing  right  entitled  to  have  right  recognized  in 

subsequent  suit  involving  same  subject  and  defended  by  him  for 
another. 
Where  a  decree  to  which  he  is  privy  has  established  the  right  of  a 
manufacturer  to  sell  an  article,  there  is  force  in  the  argument 
that  such  right  should  be  recognized  in  another  suit  against  his 
customer  and  defended  by  him.     {Kesder  v.  Eldred,  206  U.  S. 
285.)    Brill  v.  Washington  Ry,  &  Electric  Co.,  527. 
/See  Constitutional  Law,        Federal  Question; 
4,  6,  7;  Mandamus,  2,  3; 

Courts,  3-6;  Parties,  2; 

Trial. 

JUDICIAL  DISCRETION. 

5ce  Contracts,  4; 
Pleading,  2. 

JURISDICTION. 

A.  Op  This  Court. 

1.  Under  Criminal  Appeals  Act  of  1907 — Indictment  for  violation  of 

§  5209,  Rev.  Stat. 
Whether  the  person  deceived  by  false  entries  is  the  person  intended 
by  the  statute,  and  whether  the  averments  as  to  the  deceit  are 
sufficient  to  sustain  the  indictment,  are  questions  which  involve 
the  construction  of  the  statute  on  which  an  indictment  for  mak- 
ing false  entries  in  violation  of  §  5209,  Rev.  Stat.,  is  based,  and 
this  court  has  jurisdiction  to  review  under  the  Criminal  Appeals 
Act  of  March  2,  1907,  c.  2564,  34  Stat.  1246.  United  States  v. 
CorheU,  233. 

2.  Under  Criminal  Appeals  Act  of  1907 — Scope  of  review. 

On  writ  of  error  taken  by  the  United  States  under  the  Criminal  Ap- 


INDEX.  663 

peals  Act  of  March  2,  1907,  c.  2564,  34  Stat.  1246,  where  the 
indictment  was  dismissed  as  not  sustained  by  the  statute  and 
also  as  bad  on  principles  of  general  law,  this  court  can  only  review 
the  decision  so  far  as  it  is  based  on  the  invalidity  or  construction 
of  the  statute,  it  cannot  consider  questions  of  general  law.  ( United 
States  V.  Keitel,  211  U.  S.  370.)     United  States  v.  Stevenson,  190. 

3.  On  certificate  under  il  of  act  of  Fdmiary  11,  1903 — When  case  may 

not  he  certified. 
Under  §  1  of  the  expeditmg  act  of  February  11,  1903,  c.  544,  32  Stat. 
823,  the  case,  although  turning  only  on  a  point  of  law  cannot 
be  certified  to  this  court,  in  absence  of  any  judgment,  opinion, 
decision,  or  order  determinative  of  the  case  below.  Baltimore  <St 
Ohio  R,  R.  Co.  V.  Interstate  Com.  Com,,  216;  Southern  Pacific 
Co.  V.  Interstate  Com.  Com.,  226. 

4.  Direct  review  under  §  6,  Court  of  Appeals  Act  of  1897. 

Whether  defendant  was  subject  to  service  of  process  at  the  place 
where  served  is  one  of  the  jurisdictional  questions  which  may 
be  brought  directly  to  this  court  under  §  5  of  the  Court  of  Ap- 
peals Act  as  amended  January  20,  1897,  c.  68,  29  Stat.  492. 
(Remington  v.  Central  Pacific  Railroad  Co.,  198  U.  S.  95.)  Me- 
chanical Appliance  Co.  v.  CasUeman,  437. 

5.  Under  i  5  of  the  act  of  1891 — When  jurisdiction  of  court  as  Federal 

court  involved. 
Where  the  case  is  dismissed  because  the  character  of  the  action  is  one 
cognizable  exclusively  by  a  court  of  admiralty  and  the  jurisdic- 
tion is  challenged  because  the  situation  of  the  vessel  and  the 
character  of  the  services  rendered  afforded  no  jurisdiction  in 
admiralty,  the  jurisdiction  of  the  court  as  a  Federal  court  is 
involved  and  the  case  is  one  cognizable  by  this  court  under  §  5 
of  the  act  of  1891.    The  Steamship  Jefferson,  130. 

6.  On  appeal  from  District  Court  sitting  in  admiralty — Sufficiency  of 

certificate. 
Where  the  District  Court  has  allowed  an  appeal,  but  has  not  certified 
that  the  question  of  jurisdiction  alone  was  involved,  as  required 
by  §  5  of  the  act  of  March  3,  1891,  c.  517,  26  Stat.  826,  if  it  ap- 
pears from  the  face  of  the  record,  irrespective  of  recitals  in  the 
order,  that  the  cause  was  dismissed  for  want  of  jurisdiction,  the 
question  of  jurisdiction,  if  it  is  of  such  a  character  as  to  sustain 
the  appeal,  is  sufficiently  certified.  (United  States  v.  Larkin, 
208U.  S.  333.)    lb. 


654  INDEX. 

7.  Under  §  709,  Rev.  Siat. — Involution  of  Federal  question. 

Where  the  effect  of  the  judgment  of  the  state  court  is  to  deny  the 
defense  that  a  statute  of  a  Territory  is  a  bar  to  the  action,  a 
claim  of  Federal  right  is  denied  and  this  court  has  jurisdiction 
under  §  709,  Rev.  Stat.,  to  review  the  judgment.  {Atchieony 
Topeka  &  Santa  Fe  Ry,  v.  Sowers,  213  U.  S.  55.)  El  Paao  <fc 
Northeastern  Ry.  Co.  v.  Gutierrez,  87. 

8.  Under  §  709,  Rev.  Stat. — Involution  of  Federal  question. 

Where  in  the  state  court  plaintiff  in  error  set  up  the  invalidity  of  a 
deed  under  the  provisions  of  an  act  of  Congress  and  judgm^it 
could  not  be  rendered  against  him  without  sustaining  the  deed 
this  court  has  jurisdiction  under  §  709,  Rev.  Stat.  (Anderson 
V.  Carkins,  135  U.  S.  483;  NuU  v.  Knul,  200  U.  S.  12.)  Sylvester 
V.  Washington,  80. 

9.  Under  §  709,  Rev.  Stat. — Involution  of  Federal  right — Objection  to 

assessment  of  national  hank  shares. 
Where  the  validity  of  the  local  statute  imder  which  national  bank 
shares  are  assessed  was  not  drawn  in  question,  but  the  only  ob- 
jection in  the  state  court  was  that  the  assessment  was  in  excess 
of  actual  value,  exorbitant,  imjust  and  not  in  proportion  with 
other  like  property,  no  Federal  right  was  set  up  or  denied  and 
this  court  has  no  jurisdiction  to  review  the  judgment  under 
§  709,  Rev.  Stat.    Fird  National  Bank  v.  EstherviUe,  341. 

10.  Involution  of  Federal  question;  construction  of  Federal  statute. 
This  court  has  jurisdiction  of  this  case;  for,  even  if  the  requisite 

amount  is  not  involved,  the  meaning  and  effect  of  a  provision 
of  the  Philippine  Organic  Act  of  July  1,  1902,  c.  1369,  32  Stats. 
691,  is  involved.    Reavis  v.  Fiama,  16. 

11.  Under  §  709,  Rev,  Stat. — When  construction  of  law  of  United  States 
involved. 

Where  plaintiff  bases  his  bill  on  the  contention  that  under  the  town- 
site  law,  §  2387,  Rev.  Stat.,  the  ascertainment  of  boundaries  by 
official  survey  is  a  condition  subsequent  upon  which  the  vesting 
of  the  equitable  rights  of  the  occupant  depends,  the  construction 
of  a  law  of  the  United  States  is  involved,  and,  if  passed  on  ad- 
versely by  the  state  court,  this  court  has  jurisdiction  under  §  709, 
Rev.  Stat.,  to  review  the  judgment.    ScuUy  v.  Squier,  144. 

12.  Federal  question  involved  by  daim  of  want  of  fuU  credit  by  state 
court  of  judgment  of  Federal  court. 

The  claim  of  plaintiff  in  error  that  proper  and  full  credit  was  not 


INDEX.  655 

given  to  a  judgment  in  the  Federal  court,  if  seasonably  made, 
raises  a  Federal  question  and  if  the  decision  of  the  state  court 
is  in  effect  against  such  claim  this  court  has  jurisdiction.  Virginia' 
Carolina  Chemical  Co.  v.  Kirven,  252. 

13.  Under  §  709,  Rev,  Stat.— Judgment  resting  on  novrFederal  grounds. 
Where  the  judgment  of  the  state  court  rests  on  non-Federal  grounds 

broad  enough  to  sustain  it  this  court  cannot  review  it  imder 
i  709,  Rev.  Stat.    Kansas  City  Star  Co,  v.  Julian,  589. 

14.  Appeal  from  Circuit  Court  of  Appeals  dismissed  for  want  of  juris-, 
diction.    North  Carolina  Mining  Co.  v.  Westfeldt,  586. 

15.  Writ  of  error  to  Circuit  Court  of  Appeals  dismissed  for  want  of 
jurisdiction,    Helvetia-Swiss  Fire  Ins,  Co,  v.  Brandenstein,  588. 

16.  Writs  of  error  to  Circuit  Courts  of  the  United  States  dismissed  for 
want  of  final  judgment,  PfaeUer  v.  Bach  Fur  Co,,  584;  Remick 
&  Co,  v.  Stem,  585. 

17.  Ap^peal  from  Circuit  Court  of  the  United  Stales  dismissed  for  want 
of  jurisdiction.  Guaranty  Trust  Co,  v.  Metropolitan  St,  Ry,  Co,, 
587. 

18.  Writs  of  error  to  highest  courts  of  States  dismissed  for  vsant  of  juris- 
diction, Mackenzie  v.  Mackenzie,  582;  Strong  v.  Gassert,  583; 
Barker  v.  Butte  Consolidated  Mining  Co.,  584;  Thomas  v.  Iouhi, 
591 ;  Huston  v.  Haskell,  592 ;  Berger  v.  Tracy,  594. 

19.  To  review  judgment  of  state  court  haeed  on  contract  clause  of  Conr 
stitution. 

This  court  has  not  jurisdiction  to  review  the  judgment  of  a  state  court 
based  on  the  contract  clause  of  the  Constitution  unless  the  alleged 
impairment  was  by  subsequent  legislation  which  has  been  upheld 
or  given  effect  by  the  judgment  sought  to  be  reviewed.  {Bacon  v. 
Texas,  163  U.  S.  207.)    Hubert  v.  New  Orleans,  170. 

20.  Writ  of  error  to  review  judgment  of  a  state  court  dismissed  for  want 
of  jurisdiction  vnthout  opinion  on  authority  of  previous  decisions. 
Mills  V.  Johnson,  590. 

21.  On  certificate, 

A  certificate  in  which  there  was  no  opinion,  judgment  or  order  of  the 
court  below  dismissed  on  authority  of  Baltimore  &  Ohio  R.  R. 


656  INDEX. 

Co,  V.  Interstate  Cam.  Com.,  ante,  p.  216.  ■  United  States  v.  Temd- 
nal  Railroad  Assn.,  595. 

See  Congress,  Powers  of,  2; 
Courts. 

B.  Of  Circuit  Courts  of  the  Unitbd  States. 

1.  Of  suit  by  shippers  to  enjoin  railroad  from  putting  tariff  schedule 

into  effect. 
A  suit  brought  by  shippers  to  enjoin  a  railroad  company  from  putting 
a  tariff  schedule  into  effect  on  the  ground  that  it  violates  rights 
secured  by  the  act  to  regulate  commerce  is  a  case  arising  under 
the  Constitution  and  laws  of  the  United  States,  and  the  juris- 
diction of  the  Circuit  Court  over  the  person  of  the  defendant  must 
be  determined  accordingly.  Macon  Grocery  Co.  v.  Atlantic  Coast 
Line  R.  R.  Co.,  501. 

2.  Of  case  arising  under  Constitution  and  laws  of  United  States;  resi- 

dence of  defendant  in  district  essential. 
Under  the  jurisdictional  act  of  March  3,  1875,  c.  137,  18  Stat.  470,  as 
amended  by  the  act  of  March  3,  1887,  c.  373,  24  Stat.  552,  cor- 
rected by  the  act  of  August  13,  1888,  c.  866,  25  Stat.  433,  the 
Circuit  Court  in  the  district  of  which  the  defendant  is  not  an 
inhabitant  has  not  jurisdiction  of  a  case  arising  imder  the  Con- 
stitution and  laws  of  the  United  States,  even  though  diverse 
citizenship  exist,  the  plaintiff  resides  in  the  district,  and  the  cause 
be  one  alone  cognizable  in  a  Federal  court.    lb. 

3.  Status  of  case  as  one  arising  under  laws  of  United  States. 

While  the  construction  of  the  act  of  Congress  under  which  a  patent 
issued  and  what  rights  passed  under  the  patent  present  Federal 
questions  which  give  the  Circuit  Court  jurisdiction  of  the  case 
as  one  arising  under  the  laws  of  the  United  States,  if  prior  de- 
cisions have  so  defined  such  rights  that  they  are  removed  from 
controversy,  jurisdiction  does  not  exist  in  the  absence  of  diverse 
citizenship.     McGUvra  v.  Ross,  70. 

C.  Of  Federal  Courts  Generally. 
In  administration  of  state  laws. 

When  administering  state  laws  and  determining  rights  accruing 
thereunder,  the  jurisdiction  of  the  Federal  court  is  an  independ- 
ent one,  coordinate  and  concurrent  with,  and  not  subordinate 
to,  the  jurisdiction  of  the  state  courts.  Kuhn  v.  Fairmont  Coal 
Co.,  349. 

See  Courts,  1-5, 12. 


INDEX.  667 

D.  Equity. 

5ee  Courts,  1,2,3,4,6; 
Equity; 
Judgments  and  Decrees,  1,  2,  3. 

E.  Admiralty. 
See  Admiralty. 

• 

F.  Probate. 
See  Courts,  2, 3, 4. 

G.  State  Courts. 
See  Constitutional  Law,  7. 

H.  Over  Indians. 
See  Indians,  2,  3,  5,  6. 

I.  Generally. 

Appellaie;  deiermination  of  case  by  inferior  court  implied — What  amounts 
to  original  jurisdiction. 

Appellate  jurisdiction  implies  the  determination  of  the  case  by  an 
inferior  court,  and  the  transfer  of  the  case  to  the  appellate  court 
without  such  determination  amoimts  to  giving  the  appellate 
court  original  jurisdiction.  Baltimore  <&  Ohio  R,  R,  Co,  v.  Inter- 
state Com.  Com,y  216. 

LABOR  AND  MATERLAL  LAW. 
See  Public  Works. 

LACHES. 

See  Appeal  and  Error,  4; 
Equity,  7; 
Franchises. 

LAND  GRANTS. 

1.  Philippine  Islands;  validity  of  grant  of  public  land. 

In  thb  case  the  grant  involved  was  made  without  authority  by  sub- 
ordinate officials,  was  void  ab  initio,  and  conveyed  no  title  to  the 
original  grantee  or  those  holding  under  him.  Tiglao  v.  Insular 
Government,  410. 

2.  Prescription — Notice  of  imperfections  in  title  chargeable  to  grantee. 
A  man  cannot  take  advantage  of  his  ignorance  of  the  law,  and  where 

VOL.  ccxv — 42 


658  INDEX. 

all  that  is  done  to  give  him  a  title  is  insufficient  on  its  face,  the 
grantee  is  chargeable  with  knowledge,  does  not  hold  in  good  faith, 
and  in  such  a  case  prescription  does  not  run  from  the  date  of  the 
instrument  under  which  he  claims.    lb. 

See  Equity,  8; 

Indians,  1; 

Public  Lands,  3,  4,  5. 

LEASE. 

iSee  Railroads; 

Removal  of  Causes,  4; 
Territories,  2. 

LICENSES. 
See  Constitutional  Law,  8. 

LIENS. 
See  Banks  and  Banking,  1-3. 

LIMITATIONS. 

See  Contracts,  8; 
Equity,  7. 

LIQUORS. 

See  Constitutional  Law,  8;       Indians,  6,  7; 

Customs  Law,  2;  Intoxicating  Liquors. 

LOCAL  LAW. 

Georgia.  Possession  as  evidence  of  title  (see  Equity,  3).  Graves  v. 
A8hburT^,  331. 

Kansas.  Corporation  law  of  1899  (see  Constitutional  Law,  2,  3). 
Henley  v.  Myers,  373. 

Louisiana.  Act  of  November  5,  1870,  for  collection  of  judgments 
against  city  of  New  Orleans  (see  Constitutional  Law,  4).  Hubert 
V.  New  Orleans,  170. 

New  Mexico.  SupplemenUd  pleadings.  Under  the  provisons  of  the 
Code  of  New  Mexico  allowing  supplemental  pleadings  alleging 
facts  material  to  the  issue,  the  fact  that  the  defendant  corpora- 
tion has,  since  the  suit  was  brought  by  the  Government  to  enjoin 
it  from  so  building  a  dam  as  to  interfere  with  the  navigability 


INDEX.  659 

of  an  international  river,  failed  to  exercise  its  franchise  in  ac- 
cordance with  the  statute,  is  germane  to  the  object  of  the  suit 
and  may  be  pleaded  by  supplemental  complaint.  Rio  Grande 
Dam  &c,  Co.  v.  United  Statee,  266. 

Practice  (see  Practice  and  Procedure,  4).  Santa  F€  C(ranly  v. 
Cofer,  296. 

North  Dakota,  Regulation  of  sale  of  liquor  (see  (Constitutional  Law, 
8).    Flaherty  y,  Hanson,  bib. 

Oklahoma.  Duress  invalidating  contract.  The  opinion  of  the  Supreme 
Court  of  the  Territory  followed  to  the  effect  that  the  facts  stated 
constituted  duress  within  the  meaning  of  the  terrritorial  statute. 
Snyder  v.  Rosenbaumy  261. 

PkUippine  Islands.  Organic  Act  of  July  1,  1902  (see  Jurisdiction, 
A  10).    Reams  v.  Fiama,  16.    See  Philippine  Islands. 

South  Carolina.  Code  of  Procedure,  §§  170,  171  (see  Practice  and 
Procedure,  5).     VirginiarCarolina  Chemical  Co.  v.  Kirven,  252. 

Genially.  See  Appeal  and  Error,  5;  Employers'  Liability  Act,  3; 
Judgments  and  Decrees,  3;  Public  Lands,  5. 

MANDAMUS. 

1.  As  remedy  of  creditors  of  municipality  to  compel  exercise  of  power  of 

iaxaiion. 
Where  a  municipality  has  power  to  contract  and  tax  to  meet  the  obli- 
gation, the  proper  remedy  of  the  creditor  is  by  mandamus  to  the 
authorities  of  the  municipality  either  to  pay  over  taxes  already 
collected  for  their  debt  or  to  levy  and  collect  therefor.  Hubert  v. 
New  Orleans^  170. 

2.  To  enforce  judgment;  availability  of  defense  to  original  action. 
Although  a  defense  to  the  merits  if  pleaded  in  the  original  action 

might  have  prevented  rendition  of  the  judgment,  it  cannot  be 
urged  to  prevent  mandamus  from  issuing  to  enforce  the  judg- 
ment.   Santa  F^  County  v.  CoUr,  296. 

3.  To  enforce  judgment;  wfien  authorized. 

Under  the  laws  of  New  Mexico,  where  there  is  no  possible  excuse 
for  a  board  of  county  commissioners  not  to  comply  with  a  judg- 
ment, a  peremptory  writ  of  mandamus  in  the  first  instance  is 
authorised.    Ih. 


660  INDEX. 

4.  Demand  for  enforcememt  of  duty  not  necessary  prerequisite. 
Where  the  bill  shows  it  is  clearly  the  purpose  of  defendant  offioeis 

not  to  perform  a  duty  imposed  upon  them,  demand  is  not  neces- 
sary before  suit  for  mandamus.    lb. 

5.  Reasonableness  of  tax  levy  required  by  writ. 

In  this  case  it  was  held  that  the  facts  justified  the  amount  of  the 
tax  levy  required  by  the  writ  of  mandamus  as  modified  by  the 
Supreme  Court  of  the  Territory.    lb, 

6.  LdmitaUon  of  remedy  as  provided  in  i  23  of  the  act  to  regidate  com- 

merce. 
Section  23  of  the  act  to  regulate  commerce,  although  added  thereto 
in  1889,  will  now  be  construed  in  the  light  of  §  15,  as  amended 
in  1906;  and  the  remedy  of  mandamus  is  limited  to  compelling 
the  performance  of  duties  which  are  either  so  plain  as  not  to  re- 
quire a  prerequisite  exertion  of  power  by  the  Interstate  Com- 
merce Commission  or  which  plainly  arise  from  the  obligatory 
force  given  by  the  statute  to  existing  orders  rendered  by  the 
commission  within  the  lawful  scope  of  its  authority.  Balto,  dt 
Ohio  R,  R,  Co.  V.  Pitcaim  Coal  Co.,  481, 

7.  Under  act  to  regulate  commerce;  submission  of  complaint  to  Interstate 

Commerce  Commission  as  prerequisite  to  issuance  of  writ. 
Petition  in  mandamus  by  a  shipper  averring  discrimination  in  dia- 
tribution  of  coal  cars  by  the  Baltimore  and  Ohio  Railroad  dis- 
missed because  the  matter  had  not  been  first  submitted  to  the 
Interstate  Commerce  Commission.    lb. 

8.  Motion  for  leave  to  fUe  petition  for  a  writ  of  mandamus  or  certiorari 

denied.    Ex  parte  United  States  Con.  Seeded  Raisin  Co.,  591. 
See  PBAcncE  and  Procedure,  4. 

MARITIME  LAW. 

See  ADlilRALTT. 

MARRIAGE. 
See  Constitutional  Law,  6. 

MASTER  AND  SERVANT. 
See  Employers'  Liability  Act. 

MATERIALMEN. 
See  Public  Works. 


INDEX.  661 

MINES  AND  MINING. 

See  Equity,  8; 

Interstate  Gommebce  Commission,  5,  7; 
Philippine  Islands,  1, 2,  3. 

MISDEMEANORS. 
See  Statutes,  A  9. 

MORTGAGES  AND  DEEDS  OF  TRUST. 
See  Equity,  5,  6,  7. 

MULTIFARIOUSNESS. 
See  Pleading,  1. 

MUNICIPAL  CORPORATIONS. 

/See  Mandamus,  1; 
States,  3. 

NATIONAL  BANKS. 

Aseeaament  of  stock  on  inaolvency. 

Judgment  of  the  Circuit  Court  of  Appeals  affirming  a  judgment  of  the 
District  Court  for  an  assessment  of  stock  of  an  insolvent  national 
bank  made  by  the  Comptroller,  affirmed  without  opinion.  Ken- 
yon  V.  Fowler,  593. 

See  Banks  and  Banking; 
Criminal  Law,  4; 
Statutes,  A  2. 

NAVAL  OFFICERS. 
See  Taxes  and  Taxation. 

NAVIGABILITY. 
See  Public  Lands,  7. 

NOTICE. 

/See  Attorneys; 
Extradition,  1; 
Land  Grants,  2. 

NOVELTY. 
See  Patents,  1,  2. 

NUISANCES. 
See  Corporations,  5. 


062  INDEX. 

OBJECTIONS. 
See  Practicb  and  Procbdurb,  9. 

OBLIGATIONS  OF  CONTRACTS. 

<See Constitutional  Law; 
Contracts,  1,  2. 

OLEOMARGARINE  ACT. 
See  Statutes,  A  7. 

ORDINANCES. 

See  Constitutional  Law,  1 ; 
Corporations,  5. 

OREGON  DONATION  ACT. 
See  PuBuc  Lands,  6. 

PARTIES. 

L  Necessary — Detached  portions  of  county  not  necessary  parties  to  suit 
to  recover  obligations  of  original  county — Contribution. 

Where  parts  of  a  county  have  been  detached  by  statute  which  pro- 
vides for  the  detached  portions  bearing  their  proportion  of  in- 
debtedness, the  counties  to  which  those  portions  are  attached 
are  not  necessary  parties  to  a  suit  to  recover  obligations  of  the 
original  county.  After  judgment  the  original  county  which  is 
primarily  liable  may  enforce  contribution  through  the  proper 
officers  for  the  proportionate  share  of  the  detached  portions. 
Santa  F4  County  v.  CoUr,  296. 

2.  Privies;  who  hound  as. 

Although  one  not  a  party  may  have  contributed  to  the  expenses  of  a 
former  suit  by  reason  of  business  or  indirect  interest,  if  it  is  not 
shown  he  had  any  right  to  participate  in  the  conduct  of  the  case 
he  is  not  bound  as  a  privy.  Rumford  Chemical  Works  v.  Hygienic 
Chemical  Co.,  156. 

See  Courts,  6,  7. 

PATENTS. 

L  Validity;  novelty  of  invention;  definiteness  and  timeliness  of  descrip- 
tion— Tip  for  acetylene  burner. 

The  patent  for  a  tip  for  acetylene  gas  burners,  and  for  the  process  of 
burning  acetylene  gas,  held  to  be  void  by  the  court  below  and 
by  this  court  because  the  tip  was  not  new,  the  description  too 


INDEX.  663 

indefinite,  the  amended  specifications,  which  were  unverified, 
brought  in  new  matter  and  the  claims  for  processes  so  called 
were  only  claims  for  the  functions  of  the  described  tip.  Steward 
V.  American  Lava  Co.,  161. 

2.  Patentability;  novelty. 

Devices  used  in  connection  with  steam  railway  cars  are  not  patentable 
as  new  inventions  when  applied  to  street  railway  cars,  even 
though  a  long  time  may  have  elapsed  between  their  first  use  and 
their  application  to  street  cars.  BriU  v.  Wctshington  Ry.  &  Electric 
Co,,  527. 

3.  Doctrine  of  equivalents. 

Where  the  claim  is  very  narrow,  as  in  this  case,  there  is  little  room 
for  the  doctrine  of  equivalents.    lb. 

4.  Validity;  introduction  of  theory  and  method. 

A  patent  cannot  be  sustained  when  the  theory  and  method  are  intro- 
duced for  the  first  time  in  unverified  amended  specifications. 
Steward  v.  American  Lava  Co.,  161. 

See  Public  L^db,  4. 

PENAL  STATUTES. 
See  Statutes,  A  2-7. 

PENALTIES  AND  FORFEITURES. 

For  judgment  of  court  against  Shipp,  Sheriff,  et  al.  for  contempt  of  court 
(214  U.  S.  403),  see  United  States  v.  Shipp,  680. 

See  Congress,  Powers  of,  1 ; 
Statutes,  A  4-7. 

PETITIONS  FOR  CERTIORARI. 
See  p.  596. 

PHILIPPINE  ISLANDS. 

1.  Mines;  §  22  of  Organic  Act  construed. 

The  limitation  of  size  of  mining  claims  in  §  22  of  the  Philippine  Or- 
ganic Act  applies  only  to  claims  located  after  the  passage  of  that 
act.    Reams  v.  Fiama,  16. 

2.  Mines;  location  under  §  28  of  Organic  Act;  adverse  claim  under  §  45. 
Under  §  28  of  the  Philippine  Organic  Act  a  valid  location  could  not 

be  made  if  the  land  was  occupied  by  one  who  was  already  in 
possession  before  the  United  States  came  into  power,  and  the 


654  INDEX. 

claim  of  one  locating  under  those  conditions  does  not  constitute 
an  adverse  claim  imder  §  45  of  that  act.    lb, 

3.  Mines;  §  45  of  Organic  Act  construed. 

The  provision  of  }  45  of  the  Organic  Act  of  the  Philippine  Islands 
relating  to  title  to  mines  by  prescription  refers  to  conditions 
as  they  were  before  the  United  States  came  into  power  and  had 
in  view  the  natives  of  the  islands  and  intention  to  do  them  liberal 
justice.    lb, 

4.  Natives  to  be  liberally  dealt  with  by  courts. 

Courts  are  justified  in  dealing  liberally  with  natives  of  the  Philippines 
in  dealing  with  evidence  of  possession.  {Carino  v.  Insular  Govern- 
ment, 212  U.  S.  449.)     lb. 

See  Appeal  and  Ebbor,  1 ; 
Land  Grants,  1. 

PLEADING. 

1.  Equity;  multifariousness;  availability  of  objection  of. 

The  objection  of  multifariousness  is  one  of  inconvenience,  and,  after 
trial,  where  the  objection  was  not  sustained  by  the  lower  court 
and  defendants  did  not  stand  upon  their  demurrer  setting  it  up, 
it  will  not  prevail  in  this  court  in  a  case  where  the  bill  charged 
a  conspiracy  between  several  trespassers  whose  trespasses  ex- 
tended over  contiguous  lots  treated  as  one.  Graves  v.  Ashbum, 
33L 

2.  Supplemental  pleadings;  discretion  of  court  as  to  allowance  of. 

The  allowance  of  amendments  of  supplemental  pleadings  must  at 
every  stage  of  the  cause  rest  with  the  discretion  of  the  court, 
which  discretion  must  depend  largely  on  the  special  circum- 
stances of  each  case,  nor  will  the  exercise  of  this  discretion  be 
reviewed  in  the  absence  of  gross  abuse.  Rio  Grande  Dam  <fec. 
Co,  V.  United  States,  266. 
See  Criminal  Law,  3;  Mandamus,  2; 

Employers'  Liability  Act,  3;       Patents,  1,  4; 

Equity,  2 ;  Practice  and  Procsdubb,  1, 5; 

Local  Law  (N.  Mex.)  ;  Trial. 

POLICE  POWER. 
See  States,  2. 

POSSESSION. 

jSec  Equity,  2,  3; 

Philippine  Islands,  4. 


INDEX.  665 

POWERS  OF  CONGRESS. 
See  Congress,  Powers  of. 

PRACTICE  AND  PROCEDURE. 

1.  Amendment  of  complaint  on  reopening  case  for  further  evidence. 
Where  a  case  is  opened  that  further  evidence  may  be  produced,  it 

is  also  open  for  the  amendment  of  the  original  pleadings  or  for 
additional  pleadings  appropriate  to  the  issue;  and  permission  by 
the  lower  court  to  file  such  supplemental  complaint  is  not  in- 
consistent with  the  mandate  of  this  court  remanding  the  case 
with  directions  to  grant  leave  to  both  sides  to  adduce  further  evi- 
dence.   Rio  Grande  Dam  &c,  Co.  v.  United  States,  266. 

2.  Assignment  of  errors;  court  may  notice  error  not  assigned. 
Assignment  of  errors  is  not  a  jurisdictional  requirement;  and,  although 

by  the  rule  errors  not  assigned  are  disregarded,  the  court  at  its 
option  may  notice  a  plain  error  not  assigned  or  specified.  Old 
Nick  Williams  Co.  v.  United  States,  641. 

3.  Jurisdictiorud  question  considered  although  not  assigned  as  error. 

Even  if  not  assigned  as  error,  this  court  will  consider  the  jurisdic- 
tional question  of  whether  there  is  power  in  the  court,  in  view  of 
the  provisions  of  the  act  to  regulate  commerce,  to  grant  the 
relief  prayed  for  in  regard  to  matters  within  the  competency  of 
the  Interstate  Commerce  Commission.  Balto.  &  Ohio  R.  R.  Co. 
V.  Pitcaim  Coal  Co.,  481. 

4.  FoUoioing  decisions  of  territorial  courts  on  questions  of  local  practice. 
Practice  of  the  courts  in  a  Territory  is  based  upon  local  statutes  and 

procedure  and  this  court  is  not  disposed  to  review  the  decisions 
of  the  Supreme  Court  of  the  Territory  in  such  cases,  and,  follow- 
ing the  Supreme  Court  of  the  Territory  of  New  Mexico,  this  court 
holds  that  the  power  of  that  court  to  affirm  or  reverse  and  re- 
mand includes  the  power  to  modify,  and  extends  to  proceedings 
in  mandamus.    Santa  Fi  County  v.  Coler,  296. 

5.  Conformity  in  Federal  courts  vrUh  practice  in  state  courts. 

Under  §  914,  Rev.  Stat.,  requiring  the  practice  in  the  Federal  courts 
to  conform  as  near  as  may  be  to  the  practice  in  the  state  courts, 
the  defendant  in  an  action  in  the  United  States  Circuit  Court  in 
South  Carolina  is  not  required  to  plead  all  counterclaims  and 
offsets  as  the  state  courts  have  not  so  construed  the  provisions 
of  §§  170,  171  of  the  Code  of  Procedure  of  that  State.  Virginior 
Carolina  Chemical  Co.  v.  Kirven,  252. 


666  INDEX. 

6.  Scope  of  review;  when  disputed  fact  not  considered. 

Where  the  case  is  submitted  on  bill  and  answer,  a  fact,  alleged  in 
the  complaint  and  denied  in  the  answer  and  for  which  proof  is 
demanded,  cannot  be  considered,  especially  where,  as  in  this 
case,  there  is  a  contrary  finding  of  a  body  such  as  the  Interstate 
Commerce  Commission.  Interstate  Com,  Cam.  v.  Chicago  &  AUon 
R.  R.  Co.,  479. 

7.  Scope  of  review  on  appeal  alone  by  Interstate  Commerce  Commtsaum 

where  order  of  commission  sustained  in  part. 
Where  an  order  of  the  Interstate  Commerce  Commission  is  sustained 
by  the  court  below  in  part  and  only  the  commission  appeals,  the 
conclusions  of  the  court  below  as  to  those  portions  of  the  order 
sustained  are  not  open  to  inquiry  in  this  court.  Interstate  Com. 
Com.  V.  Illinois  Cent.  R.  R.  Co.,  452. 

8.  Scope  of  review;  concern  of  this  court  with  modified  view  of  state  court 

in  case  other  than  the  one  at  bar. 
When  the  question  is  the  effect  which  should  have  been  given  by  the 
state  court  to  a  judgment  of  the  United  States  Circuit  Court, 
this  court  is  not  concerned  with  the  extent  to  which  the  state 
court  may  have  subsequently  modified  its  view  if  it  has  not 
questioned  the  correctness  of  its  decision  in  the  case  at  bar. 
VirginiarCarolina  Chemical  Co.  v.  Kirven,  252. 

9.  Objection  to  form  of  remedy;  when  taken  too  late. 

Although,  if  seasonably  taken,  an  objection  to  the  form  of  remedy 
might  be  sustained,  after  trial  on  the  merits  it  conies  too  late. 
Reavia  v.  Fianza,  16. 

10.  Findings  of  fact  concurred  in  by  lower  courts  followed. 

Where  the  Circuit  Court  and  Circuit  Court  of  Appeak  of  the  same 
circuit  agree  on  certain  facts  this  court  will  not  reverse  the  finding 
in  a  case  coming  from  that  circuit  notwithstanding  the  same  fact 
may  not  have  been  found  by  the  courts  of  another  circuit.  Rumr 
ford  Chemical  Works  v.  Hygienic  Chemical  Co.,  156. 

11.  Reasoning  of  lower  court  not  considered. 

In  determining  whether  the  action  of  the  court  below  was  or  was  not 
correct,  this  court  does  so  irrespective  of  the  reasoning  by  which 
such  action  was  induced.  InterHate  Com.  Com.  v.  Illinois  Cent. 
R.  R.  Co.,  452. 

12.  Evidence  considered  by  this  court. 

Although  in  subsequent  cases  a  party  may  have  proved  his  facts,  the 
question  when  here  must  be  decided  on  the  evidence  below  in  the 


INDEX.  667 

particular  case.    Rumford  Chemical  Works  v.  Hygienic  Chemical 
Co.,  156. 

13.  To  what  extent  naJture  of  corporation  of  State  considered. 

This  court  will  consider  the  nature  of  a  corporation  organized  under 
a  state  law  only  so  far  as  may  be  necessary  to  determine  Federal 
rights.    Minneapolis  v.  Street  Railway  Co,,  417. 

14.  Certificate  on  division  of  opinion;  what  may  he  certified. 

Only  distinct  points  of  law  that  can  be  distinctly  answered  without 
regard  to  other  issues  can  be  certified  to  this  court  on  division  of 
opinion:  the  whole  case  cannot  be  certified  even  when  its  decision 
turns  upon  matter  of  law  only.  Baltimore  d:  Ohio  R.  R.  Co.  v. 
Interstate  Com.  Com.,  216. 

15.  Time  for  raising  Federal  question. 

Where  the  Federal  question  is  first  raised  in  the  petition  to  the  high- 
est court  of  the  State  for  rehearing  it  is  too  late.  {Loeber  v. 
Schroeder,  149  U.  S.  580.)    Kansas  CUy  Star  Co.  v.  Julian,  589. 

16.  Disposition  of  case  by  Circuit  Court  without  jurisdiction  because 
Federal  qfiestions  foreclosed. 

Where  the  Circuit  Court  is  without  jurisdiction  because  the  Federal 
questions  presented  by  the  biU  are  no  longer  open  to  discussion 
it  should  dismiss  the  bill  and  not  decide  it  on  the  merits  in  order 
that  the  plaintiff's  rights,  if  any,  may  be  litigated  m  the  state 
courts.    McGUvra  v.  Ross,  70. 

17.  Decree  of  Circuit  Court  of  Appeals  affirmed  without  opinion  as  to 
merits  of  reasoning  on  which  it  was  based. 

Where  pleas  to  the  jurisdiction  which  should  have  been  sustained 
on  one  ground  were  overruled  but  subsequently  the  Circuit  Court 
of  Appeals  reversed  and  remanded  with  instructions  to  dismiss 
without  prejudice  for  want  of  jurisdiction  on  a  different  ground, 
this  court  may  reach  the  result  which  should  have  been  originally 
arrived  at  by  affirming  the  decree  of  the  Circuit  Court  of  Ap- 
peals without  expressing  any  opinion  as  to  the  merits  of  the 
reasoning  on  which  it  was  based.  Mcicon  Grocery  Co.  v.  Atlantic 
Coast  Line  R.  R.  Co.,  501. 

18.  Impertinent  matter;  striking  petition  from  files  for. 

In  denying  a  petition  for  a  writ  of  certiorari  ordered,  that  parts  of  the 
petition  and  brief  of  petitioner  be  stricken  from  the  files  on  ac- 
count of  impertinent  and  improper  matter.  Yellow  Poplar  Lum- 
ber Co.  V.  Chapman,  601. 

See  Appeal  and  Error,  5; 

Interstate  Commerce  Commission,  1. 


668  INDEX. 

PRESCRIPTION. 

See  Land  Grants,  2 ; 

Philippine  Islands,  3. 

PRESUMPTIONS. 

See  Corporations,  6;        Extradition,  4; 

Equity,  2;  Intoxicating  Liquors; 

Statutes,  A  1. 

PRINCIPAL  AND  AGENT. 
See  Statutes,  A  2. 

PRIVIES. 
See  Parties,  2. 

PROBATE  JURISDICTION. 
See  Courts,  2,  3,  4. 

PROCESS. 

Service  of  foreign  corporation  in  Federal  jurisdiction. 
In  Federal  jurisdiction  a  foreign  Qorporation  can  be  served  with 
process  under  a  state  statute  only  when  it  is  doing  business  therein, 
and  such  service  must  be  upon  an  agent  representing  the  corpora- 
tion in  its  business.  (Goldey  v.  Morning  News  Co,,  156  U.  S.  518.) 
Mechanical  Appliance  Co,  v.  Castlemanf  437. 
iSee  Jurisdiction,  A  4; 

Removal  op  Causes,  6,  7,  8. 

PUBLIC  BUILDINGS. 
See  Territories,  2. 

PUBLIC  LANDS. 

1.  Meaning  of  ** public  lands**  as  used  in  legislation. 

The  words  ''public  lands"  in  legislation  refer  to  such  lands  as  are 
subject  to  sale  or  other  disposal  under  general  laws,  and  no  other 
meaning  will  be  attributed  to  them  unless  apparent  from  the 
context  of  or  circumstances  attending  the  legislation.  Union 
Pacific  R.  R.  Co.  v.  Harris,  386. 

2.  Rights  of  entryman  in  possession — Power  of  Congress. 

While  the  power  of  Congress  continues  over  lands  sought  to  be  ac- 
quired under  preemption  and  homestead  laws  untU  final  pay- 
ment, an  entr3rman  in  actual  possession  cannot  be  dispossessed 
of  his  priority  at  the  instance  of  an  individual.    lb. 


INDEX.  669 

3.  Railroad  right  of  way;  grant  effectivCf  when. 

While  a  grant  of  right  of  way  may  take  effect  as  of  the  date  of  the 
grant  that  date  must  be  found  in  the  act  prescribing  the  finally 
adopted  route.    lb. 

4.  SeiUer'a  rights;  auperioriiy  over  those  of  railroad's  right  of  way. 

In  this  case  the  rights  of  a  bona  fide  settler  holding  a  patent  imder 
preemption  law  and  his  grantee  held  superior  to  those  of  the 
railroad  company  under  the  act  of  July  1,  1862,  12  Stat.  489, 
494,  granting  public  lands  for  a  railway  right  of  way.    76. 

5.  TownsHes— Object  of  local  legislation  authorized  by  §  2387,  Rev.  Stat. 
The  object  of  local  legislation  authorized  by  the  townsite  law,  §  2387, 

Rev.  Stat.,  is  to  consummate  the  grant  of  the  Government  to 
the  townsite  occupants — not  to  alter  or  diminish  it — and  in  this 
case  the  construction  by  the  state  court  of  the  territorial  statute 
followed  to  the  effect  that  the  trustee  and  surveyor  had  no  power 
to  alter  or  diminish  the  holdings  of  bona  fide  occupants  by  laying 
out  or  widening  streets.    Scully  v.  Squier,  144. 

6.  Sale  by  settler  before  pateni;  validity  under  Oregon  Donation  Act  of 

1850. 
Under  the  Oregon  Donation  Act  of  September  27,  1850,  c.  76,  9  Stat. 
496,  as  amended  July  17,  1854,  c.  84,  §  2,  10  Stat.  305,  no  con- 
dition except  residence  for  four  years  was  necessary  to  validate 
a  sale  by  a  settler  before  a  patent.    Sylvester  v.  Washington,  80. 

7.  Water-bound  lands;  relative  rights  of  patentee  of  United  States  and 

patentee  of  State. 
The  decision  in  Shively  v.  BowJby,  152  U.  S.  1,  which  determined  the 
relative  rights  of  a  patentee  of  the  United  States  and  one  holding 
under  a  conveyance  from  the  State  of  land  below  high  watermark 
applies  equally  to  lands  bordering  on  navigable  waters,  whether 
tidal  or  inland,  and  the  test  of  navigability  is  one  of  fact.  Mo- 
GUvra  v.  Ross,  70. 

See  Appeal  and  Error,  5; 
Equity,  8. 

PUBLIC  NUISANCES. 
See  Corporations,  5. 

PUBLIC  OFFICERS. 
See  Taxes  and  Taxation. 

PUBLIC  SERVICE  CORPORATIONS. 
See  Corporations,  4. 


670  INDEX. 

PUBLIC  WORKS. 

1.  Labor  and  materidl  law  of  1905;  application  to  persons  fumisking 

labor  and  materials  to  subcontractor. 
Under  the  labor  and  material  law  of  February  24,  1905,  c.  778,  33 
Stat.  811,  amending  the  act  of  August  13,  1894,  c.  280,  28  Stat. 
278,  indemnity  is  provided  for  persons  furnishing  labor  and 
materials  to  a  subcontractor  as  well  as  to  the  contractor  in  chief 
for  the  construction  of  a  pubhc  building.  Mankin  v.  Ludomd- 
Celadon  Co.,  533. 

2.  Labor  and  material  law  of  1905;  extent  of  application  of  indemnity 

provided. 
The  indenmity  extends  to  the  full  amount  furnished  notwithstanding 
the  contract  may  have  already  paid  the  subcontractor  in  full  or 
or  in  part.  Provisions  in  state  statutes,  limiting  recovery  against 
contractor  to  amount  remaining  unpaid  to  subcontractor,  do 
not  affect  suits  under  the  Federal  statute  which  contains  no  such 
provisions.    lb. 

m 

3.  Subcontractor^  status  under  act  of  1905. 

The  decision  in  HUl  v.  American  Surety  Co.,  200  U.  S.  197,  in  regaid 
to  claims  against  subcontractors  under  the  act  of  1894,  followed 
as  to  such  claims  under  the  statute  as  amended  in  1905.    lb. 

RAILROAD  LAND  GRANTS, 
See  PxTBLic  Lands,  3,  4. 

RAILROADS. 

Lessor  company's  responsibility  to  public. 

A  lessor  railroad  company  remains  responsible,  so  far  as  its  duty  to 
the  pubhc  b  concerned,  notwithstanding  it  may  lease  its  road, 
unless  relieved  by  a  statute  of  the  State.  Illinois  Central  R.  R. 
Co.  V.  Sheegog,  308. 

See  CoMMBRCE,  1,  2,  3,  4,  6;  mission,  2-7; 

Employers'  Liability  Act;         Mandamus,  7; 
Interstate  Commerce  Ck)M-       Removal  of  Causes,  4. 

RAILWAY  RATES. 
See  Constitutional  Law,  1. 

RATES. 
See  Constitutional  Law,  1. 


INDEX.  671 

REAL  PROPERTY. 

See  Courts,  8; 
Equity,  2,  3; 
Judgments  and  Decbbes,  1,  3. 

REFORMATION  OF  INSTRUMENTS. 
See  Equity,  5,  6,  7. 

REGULATION  OF  INTERSTATE  COMMERCE. 

See  Courts,  13,  14,  15. 

REMEDIES. 

See  CoBfMBRCE,  5 ;        Eqxhty  ; 

Contracts,  3;        Practice  and  Trocbdvbs,  9; 
Mandamus;  Statutes,  A  1. 

REMOVAL  OF  CAUSES. 

1.  Joint  liability — Effect  of  dismissal  of  case  as  to  defendants,  residents 

of  plaintiff* s  State,  on  right  of  nonrresidents  to  remove. 
Where  plaintiff  in  good  faith  insists  on  the  joint  liability  of  all  the 
defendants  until  the  close  of  the  trial,  the  dismissal  of  the  com- 
plaint on  the  merits  as  to  the  defendants  who  are  citizens  of 
plaintiff's  State  does  not  operate  to  make  the  cause  then  re- 
movable as  to  non-resident  defendants  and  to  prevent  the  plain- 
tiff from  taking  a  verdict  against  the  defendants  who  might  have 
removed  the  cause  had  they  been  sued  alone,  or  if  there  had 
originally  been  a  separable  controversy  as  to  them.  Laihrop, 
Shea  &  Henv>ood  Co.  v.  Interior  Construction  Co,,  246. 

2.  Joinder  of  parties;  bona  fides  affecting  right  of  removal. 

Where  the  joinder  of  the  resident  and  the  non-resident  defendants 
prevents  removal  to  the  Federal  court,  the  fact  that  on  the  trial 
the  jury  finds  against  the  non-resident  defendant  only  has  no 
bearing  on  the  question  of  removal  if  the  joinder  was  not  fraudu- 
lent.   lUinois  Central  R,  R,  Co,  v.  Sheegog,  308. 

3.  Joinder  of  parties;  sufficiency  of  allegation  of  fraud, 

A  plaintiff  may  sue  the  tort-feasors  jointly  if  he  sees  fit,  regardless  of 
motive,  and  an  allegation  that  resident  and  non-resident  tort- 
feasors are  sued  for  the  purpose  of  preventing  removal  to  the 
Federal  court  is  not  a  sufficient  allegation  that  the  joinder  was 
fraudulent.    /&. 

4.  Joinder  of  parties;  joinder  of  lessor  and  lessee  railroads  as  tort-feasors 

held  7U>t  fraudulent. 
Whether  defendants  can  be  sued  jointly  as  tort-feasors  is  for  the 
state  court  to  decide;  and  so  held  that,  where  the  state  court 


672  INDEX. 

decides  that  a  lessor  road  in  that  State  is  responsible  for  keeping 
its  roadbed  in  order  the  joinder  of  both  lessor  and  lessee  roads, 
in  a  suit  for  damages  caused  by  imperfect  roadbed  and  manage- 
ment b  not  fraudulent  and  the  lessee  road,  although  non-resident^ 
cannot  remove  if  the  lessor  road  is  resident.    lb. 

5.  Fact;  aUegatians  of;  where  tried. 

Allegations  of  fact,  so  far  as  material  in  a  petition  to  remove,  if  con- 
troverted, must  be  tried  in  the  Federal  court,  and  therefore  must 
be  taken  to  be  true  when  the  state  court  fails  to  consider  them.   76. 

6.  Right  of  party  removing  irUo  Federal  court  to  opinion  of  thai  court. 
After  removal  from  the  state  to  the  Federal  court,  the  moving  party 

has  a  right  to  the  opinion  of  the  Federal  court  not  only  on  the 
merits,  but  also  as  to  the  validity  of  the  service  of  process.  Me- 
chanical Appliance  Co,  v.  Cattleman,  437. 

7.  DetermiruUion  by  Federal  court  as  to  validity  of  service  of  process  by 

state  officer. 
In  such  case,  and  on  such  a  question,  it  is  proper  for  the  court  to 
consider  affidavits,  it  not  appearing  in  the  record  that  any  ob- 
jection was  taken  thereto.    /&. 

8.  Sheriff's  return  as  to  service  of  process  not  condusi'ne  on  Federal 

court  after  removal  of  case  thereto. 
Even  if  by  the  law  of  the  State  the  sheriff's  return  is  conclusive  and 
cannot  be  attacked,  after  removal  into  the  Federal  court,  that 
court  can  determine  whether  a  defendant  was  properly  served; 
and  if ,  as  in  this  case,  it  appears  that  the  corporation  was  not 
doing  business  in  the  State,  the  court  should  dismiss  the  bill  for 
want  of  jurisdiction  by  proper  service.    76. 

RESERVATIONS. 
See  Indians.  ^ 

RES  JUDICATA. 
See  Judgments  and  Decrees,  4,  6. 

RIPARIAN  RIGHTS. 
jSee  PuBuc  Lands,  7. 

RIVERS. 
See  States,  1. 

RULES  OF  COURT. 
For  amendmerU  to  ^  7  of  Rule  24,  of  the  rules  of  this  courts  see  p.  xiv. 


INDEX.  673 

SALES. 
See  PuBUC  Lands,  6. 

SALVAGE. 
See  Admiralty,  L 

SERVICE  OF  PROCESS. 

See  Jurisdiction,  A  4; 
Prochbss; 
Removal  of  Causes,  5,  7,  8. 

SET-OFF. 
See  Banks  and  Banking,  5. 

SPECIFIC  PERFORMANCE. 

5ce  Contracts,  3,  4,  5; 
Equity,  8. 

STARE  DECISIS. 

/  5e«  Courts,  8,  10,  11,  12; 

Statutes,  A  10. 

STATES. 

1.  Jurisdiction  over  beds  of  streame  and  other  vxUere. 

Each  State  has  full  jurisdiction  over  the  lands  within  its  borders  in- 
cluding the  beds  of  streams  and  other  waters,  Kansas  v.  Colorado^ 
206  U.  S.  46,  93,  subject  to  the  rights  granted  by  the  Constitution 
of  the  United  States.    McGUvra  v.  RosSy  70. 

2.  Police  power;  exercise  not  to  conflict  with  Federal  authority, 

A  State  cannot  so  exert  its  police  power  as  to  directly  hamper  or 
destroy  a  lawful  authority  of  the  United  States.  Flaherty  v. 
Hanson,  515. 

3.  Power  in  respect  of  rights  created  by  former  legislation  for  security  of 

debts  of  municipality. 
The  legislature  of  a  State  cannot  take  away  rights  created  by  former 
legislation  for  the  security  of  debts  owing  by  a  municipality  of 
the  State  or  postpone  indefinitely  the  payment  of  lawful  claims 
until  such  time  as  the  municipality  b  ready  to  pay  them.  Hubert 
V.  New  Orleans,  170. 

4.  Taxing  power  of  United  States  may  not  be  burdened  by. 

A  State  cannot  place  a  burden  on  a  lawful  taxing  power  of  the  United 

VOL.  ccxv — 43 


674  INDEX. 

States;  nor  can  it  plaoe  a  burden  upon  the  person  paying  a  tax 
to  the  United  States  solely  because  of  such  pa3rment  and  without 
reference  to  the  doing  by  such  person  of  any  act  within  the  State 
and  subject  to  its  regulating  authority.  Flaherty  v.  Hanaon,  515. 
See  Constitutional  Law,  2, 3;        Public  Lands,  7; 

CoBPORATiONS,  6;  Public  Works,  2; 

Courts,  1,  2;  Taxes  and  Taxation. 

STATUTE  OF  FRAUDS. 
See  Contracts,  5. 

STATUTE  OF  LIMITATIONS. 

jSce  Contracts,  8; 
Equity,  7. 

STATUTES. 

A.  Construction  of. 
L  History  of  legidcUion  considered  in  determining  intention  of  Congress, 
In  determining  whether  a  special  remedy  created  by  a  statute  for 
enforcing  a  prescribed  penalty  excludes  all  other  remedies,  the 
intention  of  Congress  may  be  found  in  the  history  of  the  legisla- 
tion, and,  in  the  absence  of  clear  and  specific  language,  Congress 
will  not  be  presumed  to  have  excluded  the  Government  from  a 
well-recognized  method  of  enforcing  its  statutes.  United  Stales 
V.  Stevenson,  190. 

2.  Penal;  rule  of  strict  constructionr^-Section  5209,  Rev.  Stat.,  held  to 

include  attempt  to  deceive  Comptroller  of  the  Currency. 
Notwithstanding  the  rule  of  strict  construction  the  offense  of  de- 
ceiving an  agent  by  doing  a  specified  act  may  include  deception 
of  the  officer  appointing  the  agent  where  the  statute  is  clearly 
aimed  at  the  deception ;  and  under  §  5209,  Rev.  Stat.,  the  making 
of  false  entries  with  the  intent  to  deceive  any  agent  appointed 
to  examine  the  affairs  of  a  national  bank,  includes  an  attempt 
to  deceive  the  Comptroller  of  the  Currency  by  false  entries  made 
in  a  report  directly  to  him  under  Si5311,  Rev.  Stat.  United 
States  V.  Corbett,  233. 

3.  Penal;  applicaHon  of  rule  of  strict  construction. 

The  rule  of  strict  construction  of  penal  statutes  does  not  require  a 
narrow  technical  meaning  to  be  given  to  words  in  disregard  of 
their  context  and  so  as  to  frustrate  the  obvious  legislative  in- 
tent,   lb. 


INDEX.  675 

4-  Penal  statutes;  enforcement  by  civU  suit  and  by  indictment — Immigra- 
tion Act  of  1907,  §§4  and  5,  construed. 

The  fact  that  a  penal  statute  provides  for  enforcing  the  prescribed 
penalty  of  fine  and  forfeiture  by  civil  suit  does  not  necessarily 
exclude  enforcing  by  indictment;  and  so  held  in  regard  to  penalty 
for  assisting  the  immigration  of  contract  laborers  prescribed  by 
§§4  and  5  of  the  Immigration  Act  of  February  20,  1907,  c.  1134, 
34  Stat.  898.     United  States  v.  Stevenson,  190. 

5.  Penal  statutes;  inclusion  of  corporations. 

Where  corporations  are  as  much  within  the  mischief  aimed  at  by  a 
penal  statute  and  as  capable  of  willful  breaches  of  the  law  as 
individuals  the  statute  wUl  not,  if  it  can  be  reasonably  inter- 
preted as  including  corporations,  be  interpreted  as  excluding 
them.     United  Stales  v.  Union  Supply  Co.,  50. 

6.  Perud  statutes;  effect  of  impossibility  of  imposition  of  one  of  two 

penalties. 
Where  a  penal  statute  prescribes  two  independent  penalties,  it  will  be 
construed  as  meaning  to  inflict  them  so  far  as  possible,  and,  if 
one  is  impossible,  the  guilty  defendant  is  not  to  escape  the  other 
which  is  possible,    lb. 

7.  Penal;  application  o/  §  6  of  Oleomargarine  Act  of  1902  to  corporations. 

Section  6  of  the  act  of  May  9,  1902,  c.  784,  32  Stat.  193,  imposing  cer- 
tain duties  on  wholesale  dealers  in  oleomargarine  and  imposing 
penalties  of  fine  and  imprisonment  for  violations  applies  to  cor- 
porations, notwithstanding  the  penalty  of  imprisonment  cannot 
be  inflicted  on  a  corporation,    lb. 

8.  Separability — Validity  of  statute  as  measured  by  different  powers  of 

Congress. 
An  act  of  Congress  may  be  unconstitutional  as  measured  by  the  com- 
merce clause,  and  constitutional  as  measured  by  the  power  to 
govern  the  District  of  Columbia  and  the  Territories,  and  the  test 
of  separability  is  whether  Congress  would  have  enacted  the  legis- 
lation exclusively  for  the  District  and  the  Territories.  El  Paso 
&  Northeastern  Ry.  Co.  v.  Gutierrez,  87. 

9.  Use  of  terms  in  prior  statutes  not  conclusive. 

Although  the  term  misdemeanor  has  at  times  been  used  in  the  statutes 
of  the  United  States  without  strict  regard  to  its  common-law 
meaning,  a  misdemeanor  at  all  times  has  been  a  crime,  and  a 
change  in  a  statute  by  which  that  which  before  was  merely  un- 
lawful is  made  a  misdemeanor  will  not  be  presumed  to  be  mean- 
ingless.     United  States  v.  Stevenson,  190. 


676  INDEX. 

10.  Effect  of  prior  construction  as  stare  decisis. 

The  construction  of  a  statute  in  a  particular,  in  regard  to  idiich  no 
question  was  raised,  will  not  prevent  the  determination  as  an 
original  question  of  how  the  statute  should  be  construed  in  that 
particular  when  controverted  in  a  subsequent  case.  United 
States  V.  CorbeU,  233. 

1 1 .  Ejusdem  generis;  application  of  rule. 

The  rule  of  ejusdem  generis,  that  where  the  particular  words  of  de- 
scription are  followed  by  general  terms  the  latter  will  be  regarded 
as  referring  to  things  of  a  like  class  with  those  particularly  de- 
scribed, is  only  a  rule  of  construction  to  aid  in  arriving  at  the 
real  legislative  intent  and  does  not  override  all  other  rules.  When 
the  particular  words  exhaust  the  genus  the  general  words  must 
refer  to  words  outside  of  those  particularised.  United  States  v. 
MescaUy  26. 

12.  Validity — Duty  of  courts  to  sustain  constitutionality. 

The  rule  that  the  court  must  sustain  an  act  of  Congress  as  constitu- 
tional unless  there  is  no  doubt  as  to  its  unconstitutionality  alao 
requires  the  court  to  sustain  the  act  in  so  far  as  it  is  possible  to 
sustain  it.    El  Paso  db  Northeastern  Ry.  Co.  v.  OuHerrez,  87. 
See  Congress,  Powbbs  of,  2;        Indians,  3; 
Customs  Law,  1,  2;  Mandamus,  6. 

B.  Statutes  op  the  United  States. 
See  Acts  of  Congress. 

C.  Statutes  op  the  States  and  Territoribs. 

See  Local  Law. 

STOCK  AND  STOCKHOLDERS. 

See  Constitutional  Law,  2; 
Corporations,  6. 

STREET  RA.ILWAYS. 
See  Constitutional  Law,  1. 

TARIFF. 
See  Customs  Law. 

TAXES  AND  TAXATION. 

State  taxation  of  property  of  Federal  officer. 

A  judgment  of  the  state  court  sustaining  a  tax  on  property  of  an 


INDEX.  677 

officer  of  the  United  States  Navy  affirmed  on  the  authority  of 
previous  cases.    Dyer  v.  City  of  Melrose^  594. 
See  Constitutional  Law,  4,  8;        Intoxicating  Liquobs; 
Contracts,  1,  2;  Mandamus,  1,  5; 

States,  4. 

TERRITORIES. 

1.  Commerce  in;  power  of  Congress  to  regulate. 

The  power  of  Congress  to  regulate  commerce  in  the  District  of  Colum- 
bia and  Territories  is  plenary  and  does  not  depend  on  the  com- 
merce clause,  and  a  statute  regulating  such  commerce  necessarily 
supersedes  a  territorial  statute  on  the  same  subject.  El  Paso  dt 
Northeastern  Ry.  Co,  v.  Outierrez,  87. 

2.  PiMic  buildings;  control  of  land  on  whick  erected  under  approprioHon 

by  Congress. 
Where  Congress  appropriates  for  a  Territory  to  erect  buildings  the 
implication  is  that  the  Territory  must  control  the  land  on  which 
the  buildings  are  to  be  erected,  and  where  land  is  cheap  the  im- 
plied authority  will  not  be  limited  to  merely  leasing  the  land. 
Qiuere  whether  an  organized  Territory  has  not  power  to  purchase 
land  for  a  seat  of  government.    Sylvester  v.  Washington,  80. 

See  Employers'  Liabiuty  Act; 
Statutes,  A  8. 

TIMBER. 
See  Equity,  1. 

TITLE. 

See  Appeal  and  Error,  1,  5; 
Equity,  2; 
Land  Grants,  1,  2. 

TOWNSITES. 
See  Public  Lands,  5. 

TRANSFER  OF  STOCK. 
See  Constitutional  Law,  2. 

TREATIES, 
See  Indians,  1. 

TRI\L. 

Judgment  pro  confesso  in  absence  of  pleadings. 

In  this  case  the  action  of  the  trial  court  in  taking  a  supplemental 


678  INDEX. 

complaint  for  confessed  in  the  absence  of  any  pleading  after  the 
time  therefor  had  elapsed,  sustained,  there  appearing  to  be  no 
excuse  for  the  default  and  no  irregularity  appearing  in  the  order 
permitting  the  filing  of  the  complaint  or  in  the  service  thereof. 
Rio  Orande  Dam  etc.  Co.  v.  United  States,  266. 

See  Criminal  Law,  3,  4; 

Instrdctigns  to  Jury; 

Removal  of  Causes,  5. 

.      TRUSTS  AND  TRUSTEES. 

See  Courts,  2; 
Indians,  1,  4. 

UNITED  STATES. 

See  Indians,  2, 3, 5,  6; 
States,  2,  4. 

VERDICT. 
See  Criminal  Law,  1. 

VESSELS. 
See  Admiralty,  1. 

WAIVER. 
See  Corporations,  3. 

WASTE. 
See  Equity,  4. 

WATERS. 

See  Public  Lands,  7; 
States,  L 

WORDS  AND  PHRASES. 
"Misdemeanor"  (see  Statutes,  A  9).    United  States  v.  Stevenson,  190. 
"Public  Lands'*  (see  Public  Lands,  1).     Union  Pacific  R.  R.  Co.  v. 
Harris,  386. 

/See  Statutes,  A  .3,  11. 

WRIT  OF  ERROR. 
^See  Appeal  a  sd  Error.