Skip to main content

Full text of "United States reports : cases adjudged in the Supreme Court at ... and rules announced at .."

See other formats


Google 



This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project 

to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing tliis resource, we liave taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 
We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for in forming people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liabili^ can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 

at |http: //books .google .com/I 



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 





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 m e ap ur p d 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 - i on 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